By Muiz Banire SAN
The reality of COVID-19 is not so much a matter for discussion anymore, as the truth is that a ‘new normal’ has been created in our world. The judiciary being no exception to this new dawn, judges, lawyers and litigants are already scampering for alternative ways of litigating other than physical appearance in open court. In the process, virtual court hearing surfaced. However, this appears not to be without its attendant challenges: infrastructural, constitutional and even moral challenges.
There has been a raging debate over the constitutionality or otherwise of the virtual court hearing, just as necessary infrastructural requirements to make it possible and effective have not been free from disputations. On my part, I have chosen initially not to dabble into the constitutionality controversy, despite my reservations, while the infrastructural and moral issues remain.
Notwithstanding my personal hunch, considering its centrality to the adoption, use and usefulness of virtual hearing, I will tangentially touch on the issue. As you may be aware, Section 36(3) & (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), provides for public hearing in the determination of cases, civil and criminal, respectively. In other words, in the hearing and determination of the rights of a citizen, the public must have access to the sitting of the court. This provision has generated so much controversy, since no member of the public can be said to be physically present when proceedings are conducted online. As of today, there is a sharp division among stakeholders, judges, lawyers, legal scholars and litigants, on the constitutionality or otherwise of virtual hearing in Nigerian courts. To my mind, the controversy is unnecessary, since we can avoid the looming danger in the face of an assured alternative that has the capacity of putting the issue beyond any iota of doubt. What is this choice that we have?
It is just a simple amendment of the Constitution that automatically cures any grey area. The energy that the various stakeholders have dissipated on this issue is multiple times more than sufficient to bring what simple constitutional amendment would produce. It has made the whole hoolabaloo a mere red herring. Gladly enough, and with all sense of humility, I triggered this process through my friend and brother, the chairman of the Senate Committee on Judiciary, Senator Opeyemi Bamidele, who, in collaboration with the Deputy Senate President, Senator Ovie Omo-Agege, have , impressively, with all the necessary skill and efficiency, championed the process of the amendment. In no distant time, it will become a reality that will automatically put to rest the unnecessary grandstanding that heralded the adoption of virtual court hearing.
Addressing the issue of physical infrastructure necessary to make virtual hearing a possibility, I am not too sure that our environment is fertile for the operation of this most important procedure by which, in view of the destabilising impact of the COVID-19 pandemic, we can continue to give assurance of our membership of civilised nations, where justice service delivery is a fact of life. Our Internet penetration is less than 47 per cent and, even where available, it is epileptic, to say the least. Thus, proceedings conducted with this facility can never be smooth. It will be marked by disruptions, ineffective communication and abrupt end punctuating sober judicial deliberations. It is no news that we experience freezing of online interactions half of the time.
The bandwidths of the various state and federal judiciaries are of too low capacity and quality to engage any meaningful online business. To the best of my knowledge, basic infrastructure is lacking in most of the courts, where decrepit furniture tear lawyers’ gowns and lawyers find it difficult to find seats to make a decent appearance in court. Many collapse in court due to poor aeration and malfunctional or inefficient cooling system. Communication gadgets are virtually non-existent and, where available, mostly inaudible.
When some of us started practice of law through the analogue means of filing court papers physically in the registry, which subsisted until a few years ago, filing of court processes used to take less than an hour despite the imperfections of the system, which we roundly condemned and yearned for the digital scintilation of e-filing of court papers. Today, with e-filing, we struggle to make it happen in two weeks, as mere payment of filing fees may not be acknowledged for more than 10 days. The whole process has become an albatross to legal practice and you wonder, if mere filing cannot be made seamless, what would happen by the time trials are being conducted by remote hearing? It would be a comedy by the time the judge disappears from the Internet in the course of proceedings and cannot not be found for more than 10 minutes, and by the time His Lordship is back, counsel to the plaintiff or the defendant is gone.
Almost two decades after court recording of proceedings was introduced into the judiciary of Lagos State with the provision of some gadgets and training of staff, the situation in many courts is still deplorable. Today, fewer number of courts still enjoy those facilities as many lack the devices. In others, the machines are either spoilt or inefficient. Aside from the poorly trained personnel, the welfare package is uninspiring, to say the least. Even some of that equipment that is still operational is largely obsolete. I do not want to paint the picture of the drama we normally experience with the technology. That of communication microphone is a story for another day. Let me go a step further. In courts these days, the story of power supply is prefaced with the cliché “gone are those days.” In many cases, courts have not been able to sit due to lack of electricity supply and, in many cases, the court generators would fail to come on. It is certain that no meaningful online court proceedings can be effectively run in the face of epileptic electricity supply.
I have gone this length to show the current challenges of poor infrastructure in the courts prior to mounting another technology on the dilapidated structure. Furthermore, there is sufficient literature today showing the unsecure nature of Zoom, Skype and Microsoft, the implication of which is that, in reality, what we seek to adopt as a vehicle for litigation is not more than a glorified Yahoo website. In most other jurisdictions that we want to associate with, there are appropriate technologies dedicated to virtual court hearings. These are products of huge investments by the State, mostly managed by expert private technological firms and not public officials. Thus, without mincing words, I believe that we must do away with escapist shortcut syndrome.
While a whole lot of sectors are getting the deserved attention mostly by way of blackmail, the judiciary does not need any blackmail to command the required investment. My pain, however, is that, rather than our judiciary taking advantage of the precarious situation to plead her case, we have, in our characteristic lackadaisical nature, been adopting temporary mechanisms that are largely insecure.
My message, therefore, is that the judicial sector must insist on the required investment now than ever before to ensure that government makes provision for its needs. Now that the Central Bank of Nigeria and other private sector consortiums are in the Father Christmas mood, the judiciary must demand its entitlement.
It is quite heartening that the President has triggered the financial autonomy of the judiciary into operation and, definitely, the third arm of government shall no longer go cap in hand to the executive to access its finances. It is hoped that, with this much-sought autonomy, the judiciary would embark on wise investments on provision of necessary infrastructural facilities that will guarantee seamless dispensation of justice. The truth is that, without the judiciary as the pedestal of dispute resolution, there is no way the economy can survive, not to talk of growing. However, I know that the question will be, what happens in the interim pending when this major infrastructural investments would happen, in view of the COVID-19 pandemic? I will recommend the following approach as a stopgap. Judges should take on limited schedule of cases with regulated entry into the courtroom and adherence to COVID-19 safety guidelines. As existing court dockets are too heavy to be taken care of by such ‘skeletal services’, we can, in addition, adopt virtual hearing to complement the above but it must be limited to taking of motions and processes capable of adoption like originating summons but excluding trials.
Trials and only trials, I believe, must be handled within the court room in the interim, while motions are taken by remote hearing. I plead with all stakeholders to make honesty and integrity our watchword in the process of virtual hearing. It is an underlying element of success in other jurisdictions.
This is my modest contribution to the raging debate on the issue of virtual court hearing in the face of the pandemic, while reminding ourselves that the judiciary remains the bedrock of our constitutional democracy. This point must be loudly made to the other arms of government in no unmistakable terms.
In this article: