THE PRACTICABILITY OF VIRTUAL COURT PROCEEDINGS IN NIGERIA: WEIGHING THE PROS AND CONS
The dawn of a new age in the dispensation of justice has caused a bit of a stir in the legal community. The introduction of virtual court proceedings within the judiciary seems inevitable in the face of the outbreak of the coronavirus pandemic and all stakeholders have been trying the best they can to adapt. This begs the question – Is this achievable?
“It is not the strongest or the most intelligent who will survive but those who can best manage change” – Leon C. Megginson
The outbreak of the coronavirus pandemic has forced nations and socio-economic systems to evolve into what we call the ‘new normal’. In the space of about 3 months, economies have gone into recession, institutions have shut down and lives have been lost in unimaginable numbers. The current reality facing the judicial system is one of evolution. So…here we are.
Virtual Court Proceedings and its Implementation
Virtual proceedings are simply proceedings conducted without the need for participants to be physically present. With the proposed introduction of virtual means to judicial proceedings in Nigeria, court hearings are now to be conducted without the physical presence of lawyers and litigants.
The national courts in several countries all over the world, have taken the initiative to decide what extent proceedings may be conducted by virtual means, in the immediate future with a collective mindset that virtual proceedings may end up phasing out that ‘old ways’ of physical gatherings. The Supreme Court of the United Kingdom issued a circular dated the 23rd of March, 2020 and 24 hours later, the Court conducted its first virtual proceedings. Other countries like Brazil, China, India, Singapore, Australia, Canada, etc. have also adopted virtual proceedings, albeit at different stages of implementation.
In Nigeria, the National Judicial Council, on the 6th of May, 2020, released guidelines on Court sittings and its adaptation to the lockdown measures of the Federal government, and pursuant to said guidelines, several courts issued practice directions. One thing common with all practice directions is the inclusion of measures to hold proceedings virtually. This is a bold move from the leadership of the judiciary as this inclusion will force the issue of implementation of the directions on court proceedings to go forward.
Desirability or Otherwise of Virtual Court Hearings.
It is important to analyse the ‘pros’ and ‘cons’ of the implementation of the initiative to conduct court proceedings by virtual means. The purpose of identifying the ‘cons’ is to encourage the leadership of the judiciary to be proactive in resolving these issues before we commence a holistic implementation.
1. Our laws are drafted in a way that does not envisage an alternative to proceedings conducted by physical means, this is why the proposed amendment of the Constitution to include virtual proceedings is laudable.
2. There is a lack of adequate physical as well as telecommunication infrastructure in place to implement virtual court proceedings in Nigeria. At the risk of sounding too blunt, there are court rooms in Nigeria that barely have functioning light bulbs, fans or air conditioners. Proper gadgets for virtual court proceedings may only seem like a fantasy to those judges or magistrates. I would not be surprised if a magistrate is seen using a mobile tablet as a make shift ‘hand fan’.
3.The judiciary may experience budgetary constraints if special intervention funds are not designated for the procurement of the necessary infrastructure to facilitate virtual court proceedings.
4. The litigants may not have the requisite knowhow to operate technological devices to enable them attend virtual hearings and possibly elicit evidence. Just imagining my uncles and aunts trying to connect to a simple video call will almost send me into a cardiac arrest. If they are witnesses in a virtual hearing, the court may just hold them in contempt or resign out of sheer frustration.
5.Judges were trained in a different era, as such they may find it inconvenient to navigate the relevant technical gadgets to successfully conduct virtual court hearings.
6. If evidence will be tendered virtually (by scanning), it may be a problem for judges to properly evaluate the form of the document in order to ascertain its authenticity.
7. Susceptibility to hacking. If records of proceedings are stored virtually on the platforms used for the proceedings, it may be susceptible to hacking and alteration of records which will be a perversion of justice.
1. There is huge support from all stakeholders in the legal community.
2.The process of dispensing justice is evolving constantly, decades ago, we did not have the system of ‘frontloading’ in the Nigerian jurisprudence. Further evolution is inevitable, the process of dispensing justice will evolve sooner or later and the next stage of evolution is virtual court hearings.
3. Judges can expand their knowledge base across the concept of information technology.
4. It will lead to speedy dispensation of justice.
5. It will discourage frivolous applications for adjournments premised on the unavailability of witnesses due to distance, as witnesses will be reachable wherever they are in the world.
6. This will reduce the need for writing in ‘longhand’. The requirement for judges to keep records of proceedings by writing in longhand has been a major impediment in the speedy dispensation of justice. If we can make use of platforms that records the proceedings in video form, then judges will have a source of reference.
7. Saves cost of procuring witnesses and transportation to the court premises.
8.Dispenses with interlocutory applications. Motions can now be filed and immediately adopted virtually.
9. It dispenses with the need for Trial De Novo. When a new judge steps in ‘mid-trial’ and video recordings of the proceedings are available, the judge can form opinions and evaluate evidence without the need to commence the trial afresh.
10. It is inevitable!
Constitutionality of Virtual Court Proceedings
A Bill to alter the 1999 Constitution of the Federal Republic of Nigeria (the Constitution) scaled first reading at the Senate on the 12th of May, 2020, this sparked a controversial nationwide debate from legal pundits as to the constitutionality or otherwise of virtual court proceedings.
I wish not to expend too much energy on the debate as it is my opinion that the debate is premised on the wrong question of law, the question that ought to be asked is not ‘Are virtual proceedings constitutional?’ but ‘How will virtual proceedings be conducted so as not to contradict express provisions of the Constitution’.
The Constitution, in section 36 (3) stipulates that all civil trials must be held ‘In Public’, and this is the object of the controversy as it is the only ‘pro physical trials’ stipulation in the Constitution that is without an exception. An event held ‘In public’, in its most liberal meaning, entails a situation where the members of the public have unrestricted access to witness (see and hear) such event. As such, the issue is meant to focus on the procedure of conducting virtual court proceedings. It is my position that the concept of virtual court proceedings is only constitutional on the condition that only platforms that have unrestricted access to the public are used. The moment a platform is restricted to the public using any form of password protection and such platform is used to conduct a trial, it then becomes unconstitutional in its nature and risks being declared a nullity.
Legal practitioners need no reminder as to the strict nature of constitutional interpretation as in a recent judgement, the Supreme Court of Nigeria figuratively read the ‘Riot Act’ to the legal community when it declared a 12 year trial a nullity and order a trial de novo. Therefore, I commend the proactive resolve of the National Assembly to introduce that initiative into the Constitution.
Virtual Court proceedings are inevitable and I am glad the various arms of government recognize this. Going forward, we need to understand that this is a gradual process, this will help us segment the phases of this ‘new normal’ in such a way that will make it seamless.
ABOUT THE AUTHOR
Emmanuel Omole, Esq is a public interest lawyer and writer, with a passion to sensitize the public on the importance of the rule of law and its role in social engineering.
For knowledge and Justice