By Our Reporter
As the push for Nigeria to adopt virtual court sitting, especially in the wake of the lockdowns occasioned by COVID-19, gathers momentum, many judges are not convinced such practice is legal under the 1999 Constitution, as amended. Investigation by revealed that many judges, particularly at the high court level and the Court of Appeal, are of the view that there are constitutional hurdles to cross before Nigeria can adopt a system of remote hearing of cases. They cite section 36 of the constitution, which provides that court proceedings, including delivery of court decisions, shall be held in public.
But the Senate on Tuesday considered a bill to amend the constitution to make virtual court proceedings constitutional. The bill, titled, “1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020 (SB. 418),” was sponsored by Senator Michael Opeyemi Bamidele.
Some of the judges who spoke with some reporters on condition of anonymity expressed reservations about the adoption of the digital platforms of hearing cases. They reasoned that cases heard and determined under such arrangement were most likely to be set aside by the Supreme Court on the ground that such hearings did not meet the constitutional thresholds for determining cases.
Moreover, lawyers are feeling frustrated that the lockdowns have denied them the opportunity to practise their trade. Many cases, including those involving human rights violations, could not be filed as a result of the lockdowns.
Although the Chief Justice of Nigeria, Justice Tanko Muhammad, had directed that cases that were time bound and urgent be heard, lawyers could not leave their houses because of lockdowns imposed by states.
To ensure that the justice system was not grounded to a total halt, some senior lawyers had written to the CJN to consider adoption of remote court sitting.
In one of such letters, the Justice Reform Project, in a letter dated April 14, 2020, urged the CJN “to consider issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.”
The JRP said it took the view that “this situation provides a unique opportunity for a considerable improvement of the administration of justice system in Nigeria and recommends that Your Lordship considers the adoption of remote court hearings to ensure the continued administration of justice in the face of the pandemic and an improved dispensation thereafter.”
The group in the letter signed by the Chairman, Governing Board, Mrs Olufunke Adekoya (SAN), and Convener, Charles Adeyemi Candide-Johnson (SAN), said, “The judiciary in several countries, including the United Kingdom, the Republic of Kenya and Uganda have exploited legal, financial and technological resources to ensure hearings can be conducted remotely despite the movement restrictions in place. On 3rd April 2020, a Justice of the Kenyan Court of Appeal reportedly delivered 57 rulings and judgments using inexpensive online video conferencing platform, Zoom.”
JRP argued, “Nigerian Judiciary can adopt this available, simple and inexpensive technology as has been done in other jurisdictions pending the installation of more permanent court infrastructure. In essence, we recommend the deployment of technology in two stages, an immediate temporary deployment using the simple and inexpensive measures recommended herein and a more permanent technological upgrade to be set out by a more elaborate process.”
Last Monday, a leading law chamber in Nigeria, Wole Olanipekun & Co., held a webinar titled, “Legal and infrastructural considerations for remote court proceedings in Nigeria,” which was attended virtually by the CJN, Acting President, Court of Appeal, Justice Monica Dongban-Mensem, and several other jurists and policy influencers in the justice sector.
Similarly, the Attorney-General of the Federation and Minister of Justice, Abubakar Malami (SAN) and the National Judicial Council headed by the CJN have both announced separate plans for Nigerian courts to resort to virtual proceedings during and after the COVID-19 pandemic.