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Are virtual court sittings and proceedings constitutional? 20 Apr 2022

Early last month, the upper chamber of the National Assembly rejected “A Bill for an Act to Alter the Constitution of the Federal Republic of Nigeria, 1999 to allow Court or Tribunal Proceedings to be Conducted Remotely, Virtually, Online or through any Media Platform or Technological Innovation; and for Related Matters.” The bill failed to garner two-thirds majority votes required for a constitutional amendment. The “YES” had 62 votes; “NO” had 24 votes, while three senators abstained from voting.

It is astonishing that the failure of this bill at the National Assembly did not generate an uproarious public reaction commensurate with its importance. Why does it matter? The coronavirus pandemic shut down several non-essential sectors of the economy including the judiciary. While different industries, especially in the private sector, either created or optimized digital systems to ensure business continuity, which in many instances led to more business efficiency, it took a while for the Nigerian judiciary to catch up. When it eventually did through the directives of the Chief Justice of Nigeria (CJN) to various heads of courts to commence virtual hearings of cases, arguments were raised with respect to the legality or constitutionality of the practice.

For example, the Chief Judge of Lagos State, following this directive and the issuance of the NJC Guidelines on virtual hearings, signed the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice Direction” in May 2020. The Practice Direction approved the use of digital platforms like Zoom, Skype or any other video- and audio-conferencing platform approved by the Court for the hearing and determination of urgent cases. In view of the Practice Direction, Honourable Justice Mojisola Dada delivered a judgment in a criminal matter on the 4th of May 2020 via the Zoom platform. This led to a lot of discourse on the validity of that judgment and the constitutionality of virtual sittings generally, considering the provisions of Section 36 (1), (3), and (4) of the Nigerian 1999 Constitution (as amended).

Section 36 of the Constitution basically provides that every person shall be entitled to a fair hearing within a reasonable time for the purpose of determining a right and obligation accruing to any such person, and that such hearing must be held in public. The gravamen of the issue was whether court proceedings constituted ‘public’ hearings; and, thus, whether virtual sittings or the Internet constituted a ‘public’ place within the meaning of the Constitution.

Lagos and Ekiti States governments approached the Supreme Court through their Attorney Generals seeking the interpretation of the Constitution with a view to determining whether or not virtual court proceedings and sittings are constitutional. The suits prayed the Supreme Court to determine whether having regard to the provisions of Section 36(1), (3) and (4) of the 1999 Constitution (as amended), the use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audiovisual or video-conference platform by the Lagos State High Court or any other court in Nigeria in aid of hearing and determination of cases is constitutional.

A seven-man panel of the apex court led by Hon. Justice Bode Rhodes-Vivour (now retired) held that it was premature to challenge the constitutionality or otherwise of virtual court proceedings because the National Assembly was still in the process of amending the constitution or enacting a law to that effect. The court did not, therefore, determine the issue on its merits. The Apex Court, however, directed judges nationwide to continue to conduct virtual proceedings, where comfortable for them, until the National Assembly concluded its ongoing efforts to amend the constitution to accommodate virtual hearings.

With no direct judicial precedent on the issue, the double interpretation given to Section 36 of the Constitution vis-à-vis virtual proceedings of court is still pervasive, even among the judex. While some judges have gladly adopted it, others especially the magistrates are wary of its use, citing its constitutionality as the challenge. There are several instances where magistrates have refused virtual calls with parties out of the country on grounds of constitutionality.

We are back to the period of uncertainty that the litigants (Lagos and Ekiti States) approached the Supreme Court to avoid. It was reported that the Attorney-General of Lagos State, Moyosore Onigbanjo (SAN), while addressing the court during the hearing of the suit, argued that the state wanted to prevent a situation where, after virtual sittings are conducted, they would be declared unconstitutional on that ground; a situation similar to that involving the criminal trial of former Abia State Governor, Senator Orji Uzor Kalu, whose trial and subsequent conviction was quashed on the ground that the judge who had delivered the judgment while sitting at the Federal High Court, was already a justice of the Court of Appeal at the time he delivered the judgment.

Similar sentiments were reported to have been stated by the Attorney-General of Ekiti State, Olawale Fapohunda (SAN), who was said to have stated that judges in his state were reluctant to sit and conduct virtual proceedings because they were afraid that their decisions and proceedings could be declared unconstitutional on appeal.

The learned justices of the Supreme Court, however, advised the two states to patiently await the bill seeking to include virtual sitting in the constitution before the constitutionality or otherwise of it could be challenged. It was in view of the position expressed by the justices, to the effect that the suits were premature and that the directive on virtual court proceedings enjoys the presumption of regularity, that the Attorney Generals withdrew their cases. Consequently, the suits were struck out.

Where do we stand now that the bills have been rejected? Not in a great place. We cannot truly advocate the use of technology to improve the efficiency of our system of administration of justice and exclude virtual sittings.

Some of the arguments against virtual sittings are undoubtedly challenges that must be surmounted such as epileptic power supply and internet connectivity, lack of infrastructure, evidence taking, lack of education, and lack of access by the general public who do not have access to the passwords of the virtual rooms of their interest, etc. Another major argument has to do with cyber security and manipulation.

These issues are not to be regarded as barriers to virtual sittings but merely challenges to be considered, worked upon, and surmounted. There are others who are open to the concept only for hearings dealing with harmless motions, non-contentious applications, and simple oral evidence. Some have made much ado about the duty of a judge to ascertain the credibility or otherwise of a witness by watching his or her physical demeanor, a duty incapable of being performed virtually. I believe this is threading the path of least resistance.

It is becoming apparent post-Covid-19 that we live in, at best, a hybrid world. We must begin to put processes in place that both digitize our processes and enable the use of technology to drive efficiency. A key feature of the constitutional provision of the same section 36 is the right of litigants to have their cases heard within a reasonable time. This right is breached by our inefficient analogue system among other reasons.

Where hearings can be conducted virtually, it saves both time and costs, leading to a more efficient and just system. We do not raise queries about trusting our financial institutions with digitizing the banking and financial systems because there are adequate cyber security standards, protocols, systems, and procedures in place. The judiciary needs to make use of smart and blockchain technologies for its processes.

We have adopted technology for our banking and financial systems, securities, insurance, agriculture, and general commercial activities. We must do the same for our system of administration of justice. And while there is the challenge of funding and political will, the first step is the enabling law. We must create certainty by ensuring the right legislative framework is in place. The law must progress along with the society it governs.

The law, be it substantive or procedural, especially when it relates to access to justice should not be dependent on the personality of the arbiter but on established precedents and principles. It shouldn’t matter the disposition of the arbiter a case falls to, the grundnorm must provide for just principles that promote access to justice including speedy and efficient dispensation of justice. The Bill to amend the Constitution to allow, permit or include virtual sittings of court should be passed by the National Assembly. Our Evidence Act also needs to be amended to permit taking of evidence virtually in deserving cases.

Funmilayo Odude is a Partner at Commercial and Energy Law Practice (CANDELP).