Virtual court hearing violates Section 36 of 1999 Constitution – Nwokedi

Constitutional and human rights lawyer, Mr. Joe Nwokedi, in this interview with Assistant Editor, Law and Foreign Affairs, JOSEPH ONYEWKERE, maintains that virtual court hearing constitutes a breach of Section 36 of the 1999 Constitution. He added that amending the constitution to accommodate virtual court hearings would create enormous problems both for the litigants and lawyers.

What are your thoughts about virtual court hearings?
To some extent, I believe it is a good development in our judicial system and practice, if not for some latent challenges and difficulties that would be encountered in the course of implementing it. The initiative may be viewed as both a breakthrough in technology, and in the dispensation of justice, which is in line with global development, and a conventional shift in Information and Communication Technology (ICT).

Do you think virtual court hearing is practicable at this time considering our infrastructural deficit?
Absolutely not! I don’t think it is practicable in Nigeria presently because of the level of infrastructural under-development, dilapidation and lack of access to ICT by majority of Nigerians. There are also law firms that might not have facilities to appropriately engage in such practice, considering the availability and functionality of communication networks in the country, as well as service providers. Availability of electricity and power generating sets to power facilities that would be used in the conduct of virtual court hearings within the period, especially in such cases that might take longer hours will equally pose a problem. Majority of the law firms may not be equipped to sustain such lengthy virtual court proceedings owing to lack.

There are constitutional provisions that say that courts must sit in public, and that litigants must be given fair hearing. Do you think we need to amend the constitution to accommodate virtual court hearing?
It is quite clear that there are constitutional provisions in our 1999 constitution (as amended) for courts to sit in public, just as litigants must be given fair hearing. This fair hearing is a very fundamental principle in our law, just like the issue of jurisdiction. Section 36(1) of the 1999 Constitution (as amended) specifically stated that, ‘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 fair hearing within a reasonable time by a court, or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

Subsection (3) of same Section 36 (3) provides that,  ‘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 decision of the court, or tribunal shall be held in public.”

Sub-Section (4) of same Section 36 states that ‘whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.’ It therefore implies that for any one to be said to have been given fair hearing, in any such matter listed above, the court sitting must be held in public. Therefore, by community reading of both sections 36 (1) (3) & (4)- of Sections 36 of the 1999 constitution (as amended), it is unarguably clear that virtual court hearings are in complete breach and violation of the above provisions and therefore, null and void.

But on the issue of amending the constitution to accommodate virtual court hearings, I believe that such an amendment will be in conflict with Section 42 of the same constitution, which dwells so much on discrimination. Amending the constitution to accommodate virtual court hearings would create enormous problems both for the litigants and lawyers. This is so because the majority of the litigants that might wish to be in the courtroom to witness the proceedings in their matter will be unduly restrained and prevented from doing so. By that practice, they would have been deprived and denied of the opportunity to be physically present in their matter. This will ultimately amount to a breach of their fundamental right to fair hearing. Therefore, I don’t believe in the opinion or view that we need to amend our constitution to accommodate virtual court hearings. It is not necessary to do so at all as it will complicate and compound so many issues involved in the dispensation of justice in our clime.

The challenge we have presently is the issue of COVID-19 and without which there will be no need for virtual court hearings. It will be more ideal if we adopt preventive measures like social distancing, wearing of facemasks, constant washing of hands, use of sanitisers, crowd control etc, in our court sittings than adopting virtual court hearings. COVID-19 will not stay with us forever, as we believe that the cure for it will definitely be discovered and once that is done, no one will give any thought to virtual court hearing anymore. So, I will rather advise that we adopt the new normal in our court sittings pending when COVID-19 is over.

Virtual court hearing is a procedural issue, which is supposed to be within the powers of heads of courts that issue practice directions. Do you think anyone who challenges decisions made by remote court hearing has a strong ground?
Agreed that virtual court hearings are supposed to be within the powers of heads of courts that issue practice directions, but when an issue becomes a constitutional matter, the provisions of the constitution takes an overriding effect over such other laws, or directions. We recently witnessed such in the case of FGN Vs. Orji Uzor Kalu, where the Supreme Court nullified the decision of an Appeal Court and a Federal High Court owing to the fact that there was a breach of the 1999 Constitution in the composition of the courts in that matter. Even the provision of the Administration of Criminal Justice Act (ACJA) was nullified by the Supreme Court for conflicting with the constitutional provision on the jurisdiction of the courts with respect to the compositions of the courts.

In the same case, the President of the Court of Appeal issued a fiat (direction) for the newly elevated Court of Appeal Justice to deliver the ruling. In spite of all these, the apex court still declared the judgment null and void for being inconsistent with the provisions of the constitution. The Supreme Court equally held in the case of Oloyode Ishola Vs. Ajiboye, 1994, that the Nigerian constitution is supreme, not only when another law is inconsistent with it, but also when another law seeks to compete with it in any area already covered by it.

Also in the case of Timothy Vs Okafor (2008) 9NWLR (Pt1091) 204, Lord Justice Denton West unequivocally stated that no law or customs that stands in the way of the Nigerian Constitution shall be allowed to stand, no matter the circumstances. Therefore, it is immaterial whether the authorisation or directives emanates from the judicial quarters, it will still be declared null and void once it is in conflict with the provisions of the constitution.

There are speculations that some lawyers are not ready to embrace technology due to the conservativeness of the profession. Does this view hold water at all?
It is quite obvious that most lawyers are progressives and thus very skilled in the knowledge of technology and its application, whereas some are not. Ironically, the majority of those that are conservatives in approach and disposition are more in numbers. Most lawyers prefer to do things the way they know, and how it has been done because law practice is a very delicate profession with lots of intricate issues. Law equally has some practices that need to be done manually. Most letters are written and dispatched manually, and acknowledgment receipts done manually too. Most lawyers equally take their briefs manually and attend to other legal issues with the combination of technology and manual procedures.

However, lawyers are advised to embrace advancement in technology as the world is rapidly adopting technology in most facets of life. So, it would not be ideal for lawyers to hold tenaciously to conservatism in a progressive world because most practices in the court include filing of cases and payment of filing fees are done via technological devices, and more are tilting towards that dimension too.

How do you handle criminal cases where documents need to be tendered, examined and admitted as evidence or otherwise?
Basically, this will pose a serious challenge in conducting criminal trials, where documents are tendered in open court and are viewed by both the prosecuting and defense counsel. These documents mostly known as exhibits are tendered in open courts, admitted or rejected by the trial judge or magistrate in the court and either accepted or opposed by the counsel in the matter in the open court too. How will the court handle such issues during virtual court hearings? It will be basically difficult to do so and this will equally lead to miscarriage of justice.

How do you protect the system against cyber crimes or prevent witnesses from joining and listening to proceedings where they are not required to do so?
Certainly, the process will be prone to cybercrimes like hacking, cloning, voice doctoring and manipulation of all sorts. Expert cyber-criminals and hackers may likely take advantage of virtual court hearings and wreak havoc on the legal profession. Virtual Court Hearing may not be quite secured and such will create avoidable problems to our judicial and legal system. Also, the practice of getting witnesses out-of-court, and out-of-hearings during court trials will suffer a serious problem, as it would be outright difficult if not seemingly impossible to implement that practice under virtual court hearings. Most witnesses though may not appear on the screen during virtual court hearings, but may still be within reach and hearing distance of what other witnesses are saying, and this will defeat the purpose and practice of out-of-court and out-of-court hearing, thus leading to miscarriage of justice.

In the final analysis, virtual court proceedings are not yet fully ripe for our judicial and legal systems and practices presently, as there are a plethora of challenges both legally and procedurally that the practice poses to the profession.