Funmilayo Odude, Legal Practitioner, Damod Law Practice

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Lessons from the lockdown on the administration of justice in Nigeria 18 May 2020

On March 23, 2020, the National Judicial Council (NJC) issued a circular directing all heads of courts to immediately suspend sittings for an initial period of two weeks as a means of curbing the spread of COVID-19 disease. The circular, however, made exemptions for “matters that are urgent, essential or time-bound according to our extant laws.”
    
Another circular was issued on April 6, 2020, extending the suspension of court sittings until further notice. The latest directive maintained the exemptions in the previous one.

Even without these circulars, court sittings in Lagos and Ogun states, and the Federal Capital Territory (FCT) would still have been affected by the lockdown order issued by President Muhammadu Buhari on March 29, 2020. The President’s directive granted exemptions to specific groups of persons and organizations carrying out essential services, including court matters that are urgent, essential or time-bound, according to the extant laws.

President Buhari’s COVID-19 restrictions, which were for an initial period of two weeks, were extended for another three-week period. Therefore, for a period of more than one month, there was a lockdown on the administration of justice with the exception of urgent matters, essential and time-bound cases. The lack of an alternative mode of administering justice in Nigeria is worrisome. This is the outcome of lack of investment in innovation in the country.

The judiciaries in several countries, including some in Africa such as Kenya, have incorporated the use of virtual and teleconferencing facilities to conduct court sittings. Even prior to the COVID-19 pandemic, stakeholders had time and again emphasised the need for the judicial branch of government to embrace Information and Communication Technology (ICT) tools in the administration of justice in Nigeria. I made the argument for scaling up ICT in the judiciary in my article published in the March 2019 edition of this magazine. In it, I argued that rules and procedures of court should be enhanced by efficient and robust electronic processes, including electronic filing and automated court processes.

I also described an efficient technology-driven system that would enable litigants and their lawyers enter their information and state their cases by filling relevant forms on the courts' websites. The litigants would also be able to make payment of filing fees and other incidental expenses online. As I stated in the article, this system of electronic filing, as briefly described above, is not impossible to implement in the federal courts or high courts of states in Nigeria. Some agencies of government have to a large extent successfully implemented automated systems. The Corporate Affairs Commission (CAC), for instance, has virtually automated business registration.

In this article, I like to go beyond proposing electronic filing of court documents. Court sittings can also be done as telephone and video hearings. Judicial reforms should make it possible to conduct proceedings through video-conferencing should the parties agree to it or should the need arise (as it has during the COVID-19 lockdown).

The Attorney-General of the Federation (AGF) and Minister of Justice, Abubakar Malami (SAN), in a statement issued on April 20, stressed the need for the Nigerian justice sector to reopen as soon as possible and to start tackling the backlog of cases. In his 10-point strategy plan, Malami included obtaining the support of relevant stakeholders to effect the deployment of ICT facilities to fast-track the taking of evidence from witnesses through the use of Skype, Zoom and even the IT infrastructure and facilities of the Nigerian Television Authority (NTA).

He also advocated for courts to be fully IT-compliant in order to fast track digital recording and production of court proceedings. Online payments are also expected to be part of the steps to making this possible, according to the AGF.

Following an April 22-23 meeting, the NJC constituted a 10-man committee, chaired by a justice of the Supreme Court, Olabode Rhodes-Vivour, to come up with urgent and practical measures to ensure courts continue to function despite the lockdown. The committee is expected to propose guidelines or templates for implementation.

In view of the fact that economic and other activities would have to resume in May, while still maintaining some restrictions and observing social distancing to curtail the spread of coronavirus, it is indeed very crucial that the judicial authorities are not merely paying lip service to the need to deploy technology in the administration of justice.

The reason these solutions were not previously put in place was largely due to lack of political will, as opposed to ignorance. In 2012, then-Chief Justice of Nigeria (CJN), the late Dahiru Musdapher, launched the Judicial Information Technology Policy (JITPO) to aid the courts’ use of ICT. There has obviously been no meaningful traction on the policy.

During the tenure of the immediate past CJN, Walter Onnoghen, the apex court had also attempted to inaugurate a unified e-mail platform for every legal practitioner in Nigeria. This email platform was to be the acceptable medium by which court documents, notices and information were to be communicated. Many practitioners were hopeful that this would mark the beginning of digitisation in the Nigerian court system. However, the platform has not been operational.

The coronavirus pandemic has exposed weaknesses in the health and governance systems of countries. Years of underinvestment in the Nigerian health sector and the failure to tackle economic inequality in the country have always had a significant human toll. The situation has become more glaring in the wake of COVID-19 and the lockdowns implemented across the country. The failure by the judiciary to invest in ICT solutions led to virtual halt in activities in the administration of justice.

This has not only created an immense backlog of cases as court activities resume; it also gives a notion that there is no legal remedy available to wronged persons in the event of a lockdown, unless he or she can prove the urgency of their case, according “to our extant laws.” There should never be a situation where access to justice is suspended for an indefinite period of time.

This situation has created so much uncertainties with respect to some technical legal concepts, including causes of action that could have been caught by limitation laws within this period. There is also uncertainty as to the effect of the failure to take steps that ought to be taken in proceedings that are time-bound. The judicial precedents required to clarify these uncertainties might take years to develop. The uncertainties would not have been there if court processes were digitized.

It is imperative that while the judiciary works to build the necessary ICT infrastructure, there is also the need to train our magistrates and judges on the various innovations in technology. This is not merely for the purpose of knowing how to use the tools. It will also help in understanding and appreciating the nature of ICT-related cases upon which they would adjudicate.

A very simple example is the growing frustration financial technology (fintech) companies have experienced in litigating cases where they are treated like traditional financial services providers. It is expected that the world would evolve in a lot of ways as a result of this pandemic. A lot of organisations would incorporate technology in their operations. To properly adjudicate on issues that involve technology, members of the judiciary should have more than just basic understanding about its use and concepts.

Countries would do well to learn from this crisis. It will help in making societies more inclusive and reducing the risk of future disease outbreaks and natural disasters that would cripple economies in the way COVID-19 has done. This should also be instructive for governance in Nigeria going forward. Investment in key economic sectors like agriculture, education, healthcare, and social protection should be taken very seriously.

The judiciary also must correct the errors that have resulted in the lack of alternatives for hearing cases other than the traditional system that is uncompliant with technology.