As a measure against the threat posed by the coronavirus pandemic, stakeholders in the nation’s justice delivery sector have suggested the deployment of technologies to conduct courts’ businesses. Law experts hail the initiative, but identify challenges that may hinder its success ERIC IKHILAE reports.
As the world struggles to find its feet under the crushing effect of a global pandemic, organisations are seeking safe ways to resume activities.
The Judiciary in Nigeria is one of such institutions and it is considering ways to ameliorate the impact of the global health challenge (COVID-19) while still providing needed services.
THE STRATEGIES
Following the release in March, this year of the COVID- Regulations 2020 by the Federal Government, Chief Justice of Nigeria, Justice Ibrahim Muhammad in his capacity as the head of the judicial arm of government, directed court heads to scale down court activities as a measure to curb the spread of COVID-19.
In a circular, marked: NJC/CIR/HOC/11/631 issued on March 23, 2020, the CJN advised courts’ heads to still continue to hear certain cases while keeping social distancing and wearing face masks among other anti-COVID-19 measures.
Justice Muhammad said: “Your lordships are to note that courts are expected to sit particularly to dispense matters that are urgent, essential or time-bound in line with our extant law.”
The situation remained that way, with court rendering skeletal services, until April 20, this year when the Minister of Justice and Attorney-General of the Federation (AGF), Abubakar Malami, came up with a far-reaching proposal, with the implication for the modification of how court proceedings should be conducted in the COVID-19 era.
Malami said his proposal was intended to help the courts deal with the backlog of cases occasioned by the disruptive effect of the pandemic on the Judiciary.
He observed that measures announced by the Federal and state governments to contain the spread of COVID-19 affected normal court operations, leaving many cases unattended to, a development that requires the Judiciary and other stakeholders to urgently devise ways to address the effect of the restriction of activities on the judicial process.
MOVE TOWARDS A VIRTUAL COURT REGIME
Among other measures, Malami suggested an enhanced deployment of Information and Communication Technologies (ICT) to address the restriction in courts’ activities.
“Robust use of technological tools to conduct proceedings, including virtual proceedings (this would also enable the Justices/Judges to preside over matters in their chamber without being physically, present in a formal court room, parties and their counsel will only connect through teleconference means) etc.
“Some of these adjustments are not simple and may require certain amendments of the Law (or issuance of Rules of Court and Practice Directions) as may be necessary. The judges will be sitting and maintaining social distance while the lawyers’ interface with the courts through their digital computers should be considered in certain cases,” he said.
Malami stressed the need for the deployment of ICT facilities to fast-track taking evidence from witnesses. Digital platforms, such as Skype and Zoom, can be used.
He suggested that the National Television Authority (NTA) stations across the country can be connected to courts to facilitate taking evidence as witnesses do not have to necessary be physically present in court.
“It is expected that NTA facilities are to provide the rudimentary structures for video conferencing in view of their digital switchover process.
“Using their existing ICT infrastructure, the courts may only need video screens and bandwidth at the minimum to ensure connectivity between parties to the proceedings,” Malami said.
NJC’S BUY-IN
Apparently working to give effect to Malami’s suggestions, the National Judicial Council (NJC), at its maiden virtual meeting held between April 22 and 23, this year, resolved, among others, to set up a committee to work out modalities for how the court could continue to operate in the COVID-19 era.
The 10-man committee, with Justice Olabode Rhodes-Vivour as Chairman, had Justices M. B. Dongban-Mensem (acting President of the Court of Appeal), J. T. Tsoho (Chief Judge, Federal High Court), B. B. Kanyip (President, National Industrial Court of Nigeria), Ishaq Bello (Chief Judge, High Court, Federal Capital Territory), Kashim Zannah (Chief Judge, Borno State) and O. A. Ojo as members.
Others members were the President of the Nigerian Bar Association (NBA), Paul Usoro (SAN); his predecessor, Abubakar Mahmoud (SAN) and a Senior Advocate of Nigeria, Damian Dodo.
The committee was specifically tasked with coming up “with urgent practical strategic measures to be put in place in order to ensure that courts continue to function despite the lockdown and COVID-19 challenges”.
It was also “to come up with guidelines or template for implementation and explore possible areas of collaboration between the Judiciary and the office of the Attorney-General of the Federation, stakeholders in the justice administration and development partners in justice administration sector”.
The NJC, in a subsequent statement on May 4, this year, advised courts heads to await its issuance of “guidelines on the use of appropriate technology on virtual or remote hearing”.
QUESTION OF LEGITIMACY
While courts’ heads are waiting for the NJC’s guidelines on virtual or remote court hearing, law experts are divided over whether the adoption of virtual hearing was legitimate in the face of the provision of the Constitution.
There is yet no consensus as to whether or not virtual hearing is real hearing as provided for in the Constitution.
Many have argued that the word “public” in the Section 36(3) and (4) of Constitution shall continue to mean “physical court room or other designated place” until the relevant provisions in Section 36 of the Constitution are amended.
For instance, sub-sections (3) and (4) of Section 36 of the Constitution provides: “The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in sub-section 1 of this section, including the announcement of the decisions of the court or tribunal shall be held in public.
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, entitled to fair hearing in public within a reasonable time by a court or tribunal…”
LEGISLATIVE INTERVENTION
The Legislature has intervened with a Bill for the amendment of some laws to accommodate any arrangement that the NJC and other stakeholders are about to midwife.
The Senate, on May 12 this year, passed for the first reading a Bill which seeks to legalise virtual court proceedings in line with the social distancing measure against COVID-19.
The Bill, titled: “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020,” sponsored by Senator Michael Bamidele (Ekiti Central), seeks to alter relevant sections of the Constitution, make lawful the conduct of court proceedings through technologies like Zoom, Skype, WhatsApp video or any other social media platform or technological innovations.
To that end, the Bill seeks, among others, the amendment Section 36 sub-section (3) to provide that “this section is hereby amended by the addition of the following:
“Provided that nothing in this Subsection shall invalidate proceedings of a Court or the proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) where same is held by remote hearing or any virtual means now in existence or yet to be developed.
“Section 36 subsection (4) is hereby amended by addition of sub-paragraph (c) as follows: (c) Nothing in the foregoing paragraphs shall invalidate proceedings of a court or the proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) where same is held by remote hearing or any virtual means now in existence or yet to be developed.
“Section 36 subsection (12) is hereby amended by addition of the following subsection (13): In this section, “remote hearing” means proceedings or hearing of court conducted via Zoom, Skype, WhatsApp video or any other social media platform or technological innovation.”
IMPORTANCE OF THE BILL
Bamidele, stressing the importance of the Bill and the need for its expeditious passage, explained that Section 36 (3) of the Constitution is sufficiently controversial in terms of the requirement of public hearing in the determination of disputes.
This requirement, he noted, endangers the results of proceedings eventually held virtually.
“Except the amendment is done urgently, the whole judicial functions of the nation will remain paralysed.
“It is s a case of emergency now. Upon Second Reading, the states can be given three days to make returns so that before the end of the month, the process is completed,” Bamidele said.
THE CHALLENGES
Many have hailed the initiative for remote court hearing, but expressed concern about its realisation in the nearest future in view of the peculiarity of the Nigerian environment where the needed infrastructure are absent.
They identify the challenge of funding, manpower training and mobilisation and, the absence of adequate and constant power supply, among others.
Lawyers, including Niyi Akintola (SAN), Paul Erokoro (SAN) and Ayodele Akintunde (SAN), are optimistic. They said despite the challenges, there was nothing wrong in taking steps.
Akintola and Erokoro noted that it may be difficult, at the initial stage, to apply remote hearing in proceedings at the trial courts in view of the need for physicality in the conduct of trials.
Akintola said from recent experience, he has discovered that “it is possible for us to adopt technologies like Scoop and Skype in the conduct of proceedings at the appellate courts level.
“But, definitely, it will require amendment of the Evidence Act, Practice Directions, Rules of Courts and so on.
“We may equally need to amend the Constitution because no Rules of Court or Practice Direction can override the provision of the Constitution.”
Erokoro noted the infrastructural and procedural challenges that may hinder the success of virtual proceedings.
He said: “The idea is a very good one. We have been using it in international arbitration and the law must allow modern technology to come into its efficiency.
“So, I am very much in support of it. However, this is a country where our judges still write with long hand.
“There are so many courts that are equipped, like the Federal High Courts, with automatic recording machines but only a few judges use them.”
Erokoro added that judges and court staff members need to be trained, if the system must be effective, especially during the COVID-19 era.
He added that the government must also be prepared to back this up with a lot of money since power supply was not guaranteed.
“Will the government be willing to put the kind of generators that will make sure that there is power throughout the court sitting?
“Again, how do you handle the issues of real evidence? For instance, a man is accused of killing somebody with a knife or a gun.
“How will you tender the knife or the gun online? What about the criminal matters? What about the defendants?
“The defendant has to be in court and how are you going to ensure that he is in court online? So, there are practical problems,” he said.
TIME FOR VIRTUAL COURT IS NOW
Erokoro and Akintunde, however, noted that despite the challenges, there was the need to take a step in fusing technologies into court proceedings.
Akintunde said remote court hearing simply implies the deployment of technology to assist parties and the courts to conduct proceedings without requiring the physical presence of the parties.
“There is no better time for the adoption than now. With the COVID-19 pandemic and the manner with which it is spreading, it is important that we maintain physical distancing.
“We have to move from this archaic notion that everything must be done by physical presence and move into a realism that we can do so much without having to be physically present in one environment,” he said.
Akintunde added that if there is visual hearing, the judge can stay in a room, the parties can stay in different rooms and by the aid of technology, parties and counsel can hear themselves, see themselves and the court can see parties and they are able to conduct proceedings in an organised manner.
“The court is able to give its ruling, make orders and the parties are able to make their submissions and this ensures that justice continues to be served because justice delayed is justice denied,” he said.
On his part, Erokoro noted that in view of the pervasive effect of COVID-19 and its global threat, Nigeria cannot afford not to take necessary steps.
“We should start, if we encounter difficulties, we correct them. For instance, online hearing can take place at the Court of Appeal and Supreme Court right now.
“The infrastructure and the facilities required for that will not be as difficult, as they will be for a trial in the High Courts,” Erokoro said.
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