With the recent outbreak of COVID-19 and the lockdown on public gatherings including court sessions, there were clamours on the Nigerian judiciary to consider the option of virtual court proceedings to deal with urgent matters in order to maintain law and order in the country.
Specifically some lawyers who have been unable to practice their trade had pushed for the idea.
The contention of the legal practitioners was that many cases, including those involving human rights violations, could not be filed as a result of the lockdowns and that even though the Chief Justice of Nigeria, Justice Tanko Muhammad, had directed that cases that were time bound and urgent be heard, lawyers could not leave their houses because of lockdowns imposed by states.
In fact, some senior lawyers went as far as writing the CJN officially to urgently consider the adoption of remote court sitting as being done in other countries by issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.
It was therefore not surprising that the matter featured on the agenda of the National Judicial Council (NJC) at its 91st meeting which held on April 22, 2020.
NJC headed by the CJN is a creation of section 153 of the 1999 Constitution with powers to hire and fire erring judicial officers.
At the important meeting, a committee headed by a Supreme Court Justice, Justice Olabode Rhodes-Vivour was convoked with a mandate to devise guidelines and measures to enable safe court sittings during the period of the COVID-19 pandemic in cooperation with the Office of the Attorney General of the Federation (OAGF).
The NJC had since come up with the guidelines and communicated same to all judges nationwide.
In the guidelines, the NJC directed all courts to provide fast-speed, pervasive and reliable internet connectivity, while the end-user would provide hardware devices such as desktops, laptops, tablets and smart phones which will serve for the virtual sittings using collaborative platforms such as MS365, Zoom, Google meetings and other tools with electronic recording functionalities.
The document also addressed how to conduct checks on court premises, filing of court processes, payment of filing fees, service of hearing notices, virtual or remote sittings, physical court sittings, among others.
However, before Justice Rhodes Vivour committee came up with its guidelines, Lagos State had since March 4, 2020 adopted its own court direction tagged the “Lagos State Judiciary Remote Hearing of Cases (COVID-19 Pandemic Period) Practice,” to ensure the hearing and determination of urgent and time-bound cases through digital platforms like Zoom, Skype or any other video and audio conferencing platform approved by the court.
Few cases had even been heard in the state using the Practice Direction.
But as the NJC rolled out the guidelines on the use of virtual court proceedings some judges, mostly at the high court level expressed concerns over its legality.
The judicial officers cited as a big hurdle section 36 of the 1999 constitution on the account that the section provides that court proceedings, including delivery of court decisions, shall be held in public.
They argued that virtual court proceeding would violate that constitutional provision and would render whatever they had done during the COVID-19 pandemic as null and void.
We have keenly followed development on the issue and hail the efforts of the Chief Justice of Nigeria to provide responsive direction for the nation’s justice system at a difficult crisis period like this, particularly for rolling out the guidelines on virtual court sitting to ensure that the justice system remains in operation even under the on-going lockdown.
We however note the apprehension of stakeholders in the justice system regarding the legality of conducting virtual court proceedings without necessary amendment to the constitution.
We are aware that in the case of Edibo v. the State (2007) 13 NWLR (Pt. 1051) p. 306, the Supreme Court had set aside the conviction and sentence of an appellant and others who were charged with culpable homicide punishable by death on the ground that it was unconstitutional for the trial judge to have taken their pleas in his Chambers.
The recent judgment of the Supreme Court quashing the trial, conviction and sentence of a former Abia State Governor, Orji Kalu, on the ground that the trial judge, having been elevated to the Court of Appeal, lacked the power to continue with the trial as a judge of the high court is also instructive.
We are therefore glad that the National Assembly itself has been proactive by its on-going efforts to amend section 36 of the constitution to accommodate virtual court proceedings.
We therefore urge the National Assembly to expedite action on the bill to amend the constitution so that all virtual court proceedings that had held during COVID-19 would not be nullified by the apex court.
We also implore the lawmakers to work closely with legal practitioners in this exercise to avert any loopholes that litigants may take advantage of in future particularly when a close study of the Supreme Court has shown that it has the tendency to be illiberal and inflexible in its interpretation of the constitution.