The outbreak of the Corona virus (more technically referred to as Covid-19) brought with it drastic implications in the activities of man the world over. No doubt, the pandemic hit the business of people everywhere in the world when the only generally acceptable means of preventing and treating the disease was isolation, with the direct implication that everyone stays at home. Of course the practice of law is not any different.
Society must, no doubt, move on, against all odds; and part of the greatest gifts of man’s acumen is its power of innovation, to adapt to new trends and situations in order that one does not live behind the time.
However, a supreme gift of man to society, too, is the law, which bears to regulate virtually every activity of man and ensures order in the society, man having searched in vain for the philosopher king. So, no matter the innovation or genius of man, the law is always there to test to which extent man’s activity is acceptable in any given society.
The Nigerian legal system has faced such an unforeseen difficult moment as did other areas of life following the lockdowns, social distancing, restrictive orders, etc, that are the direct indices of a concerted effort at fighting the Covid-19 virus.
Courtroom practices were halted as courts were shut down and pending matters faced indefinite protractions. It means that justice is automatically delayed, would one argue that it is justice denied in this case? I think it’s neither here nor there.
Virtual Court Proceedings
The above situation and more led to the proposition that the Nigerian legal system should adopt virtual court proceedings whereby counsel and court can communicate and conduct proceedings via internet enabled media such as: zoom, skype, et al without the physical presence of the lawyers, and perhaps parties, in court.
It is a process enabled by the Information Technology (IT) system which has like wildfire traversed the length and breath of human activities and taken them to a different new dimension.
Of course the practice is already common among journalists and other practitioners, and one will not deny the inestimable advantages thereof, especially as it has become the perfect way to contain the menaces of the present day pandemic as it relates to trial lawyers. One learns that some courts and arbitral bodies are already using it.
Virtual Court Proceedings and the Constitution
This author is of the view that as innovative and welcome the idea of the virtual court proceedings is, same, like every other activity in life, must be tested within the confines of the laws of the land, and in this case, the supreme law of the realm.
That is the principle of legality: that there has to be lawful authority, legal backing, for the activities of man and government, including judicial proceedings and the procedures therefore.
It is the humble opinion of this author that it is just recently that the rules of some courts recognised electronic service of court processes by such methods as e-mail, whatsApp and text messages, phone calls, etc.
Text messages and phone calls have recently been used by the Court of Appeal to serve hearing notices in some cases and they were deemed properly so served by the court.
The same situation is also applicable to electronic law reporting which has found a veritable place in the job of court and counsel, that today with law pavilion, legalpedia, etc, a trial lawyer has access to the authorities he needs in the prosecution of his case just by a mere click of his phone or tablet.
But what about the actual court proceeding?
The 1999 Constitution of the Federal Republic of Nigeria, section 36(3) thereof, relating to civil causes, provides as follows:
“The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal shall be held in public.”
Section 36(4) of the same Constitution further provides:
“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:
Provided that –
(a) a court or such tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice.
(b) if in any proceedings before a court or such a tribunal, a Minister of the Government of the Federation or a commissioner of the government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be disclosed, the court or tribunal shall make arrangements for evidence relating that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.”
The doctrine of constitutionalism simply insists that every activity done in law must fall within the provisions of the constitution, or, put the other way round, must not derogate from any provision of the constitution, to say the least. As Professor Vile rightly pointed out in his book, Constitutionalism and Separation of Powers:
“Western institutional theorists have concerned themselves with the problems of ensuring that the exercise of governmental powers, which is essential to the realisation of the values of their societies, should be controlled in order that it should not itself be destructive of the values it was intended to promote.”
Furthermore, an American commentator, R. Kay, had written:
“The special virtue of constitutionalism…. lies not merely in reducing the power of the state, but in effecting such reduction by the advance imposition of rules.”
In the context of the topic of this discourse, one is called upon to examine to what extent the proposed virtual court proceedings, despite its many perceived advantages, is in line with extant provisions of the 1999 Constitution of the Federal Republic of Nigeria (as amended), before considering the likely challenges and vicissitudes that may be collateral therewith.
In determining civil rights and obligations, the constitution expressly and without exception forbids trial of matters anyhow else than in public. See section 36(3) reproduced above. In criminal cases, the constitution in section 36(4) prescribes public trial and in the proviso thereof excludes certain situations whereupon the court or tribunal being satisfied, certain person may not be allowed to witness the proceeding and where such proceedings may be conducted in private for the reasons listed in (a) and (b). It therefore becomes easily discernible that the constitution intends the conduct of court proceedings in public, even in judgments and rulings.
But salient issues that agitate the mind include: to what extent does virtual court proceedings qualify as trial in public and to what extent does the constitution foresee virtual court proceedings?
In resolving the issues raised in the preceding paragraph, it will be apposite to juxtapose the actual proceedings that we are used to with the novel virtual court proceeding already described in the introductory paragraphs to this essay.
In the actual proceedings, the judge and court staff, counsel and clients physically appear in court, sign cause lists and prosecute their matters. In criminal matters, the police and correctional service officers play vital roles in producing the defendants and taking them back into lawful custody. The court and counsel must be properly robed as prescribed by law. And that is the practice we are used to.
But in the virtual court proceedings, as the name suggests, the need to be physically present in court is dispensed with. Counsel stays in the comfort of their home, connect the court with electronic gadgets that can show their live image and the court’s, and conduct proceedings.
It is our humble submission that the constitution of the Federal Republic of Nigeria did not envisage the situation of virtual court proceedings, and so it could not have provided for it. The grund norm copiously prescribed trials to be in public.
Even the provisions in provisos (a) and (b) do not contemplate or in any way infer virtual court proceedings. Proviso (a) talks about exclusion of certain persons from gaining access to court proceedings in specified situations, whereas proviso (b) talks about trial in private i.e. outside the open courtroom, perhaps in the judges chambers.
There is no way the provisions of (a) and (b) can be read to insinuate virtual court proceedings, and this author holds the view that virtual court proceedings is strange to the highest law of the land which has explicitly stated how court proceedings should be conducted and a judex will be acting ultra vires his powers as conferred by the constitution to conduct a virtual hearing of a matter.
Whenever a statute provides for a way of doing a thing, that way and no other should be followed; and the express mention of a thing is the exclusion of others. The constitution has clearly prescribed what should be done and in what manner, this author holds the view that the constitution has stated ‘a fair hearing in public’. Courts do not act in vaccuo.
More Challenges of Virtual Court Proceedings
Aside the paucity of constitutional guarantee for virtual court proceedings in Nigeria, more challenges seem to bear to adversely affect its success in our corpus juris and society.
It is said that before one sets out on a venture, good judgment warrants that one takes a critical appraisal of the said venture and see to what extent one is prepared for the challenges that follow in order not to dissipate energy for nothing and like Professor Vile said supra “be destructive of the values it was intended to promote.” The likely challenges include:
Lack of Adequate Facilities and Expertise
It remains to be rather imagined than asserted how seasoned our judexes and staff, even counsel, are to be able to adapt to the virtual court proceedings. More worrisome is the availability of facilities that will offer the virtual platforms.
This author by this constraint excepts the A-league and mega law firms with state-of-the-art facilities and periodic training for their legal and para legal staff that technological cum digital advancement has become their other names; no, this author refers to the real VIP’s, those everyday lawyers and law firms which make a living from the defence of criminal defendants who have barely a dime or none at all to pay.
How will accused persons who are in custody be present in virtual proceedings? How will the police and correctional service officers discharge their duties? Or will some cardinal rules of criminal jurisprudence be jettisoned?
Even, most of our courts and judexes alike do not even possess the wherewithal to embark on this venture. How do we proceed with virtual court proceedings where e-filing of court processes remains a gaping issue? So how ready are we?
Frauds and Sharp Practices
We live in a society and time of internet frauds and sundry activities. The police and the Economic and Financial Crimes Commission have had busy moments fighting, detecting and prosecuting the notorious yahoo practitioners over the years, and yet there seems to be no close end to that unwholesome vocation.
A very vicious cankerworm eating deep the root of law practice is that of sharp practice which has pervaded the justice system in measures too numerous to count.
Some lawyers have excelled in sharp practices beyond perfection; while some persons have already made names for themselves as wizards of the Information and Communication Technology (ICT) industry and can photoshop, crop, clone and even give life to non-existent ideas using the computer and internet.
A mixture of genius in ICT and disposition to sharp practice readily spells doom for a justice system that is not adequately fortified for this mighty challenge. If with our manual and actual court proceedings, sharp practices have faired this well, how much more in virtual court proceedings where only a few know so much and the authorities can hardly checkmate the ills?
Questions of tendering of documents, admissibility and admission of evidence, etcetera, will definitely prove serious waterloos. And one would be safe to say that the virtual court proceedings is a much susceptible to abuse as it is to beneficial use.
Internet Services Provision and Sundry Issues
We live in a country of epileptic power and internet services provision. The country’s consumer protection of citizens from the snares of paid precarious public utility providers has been comatose.
It is not in doubt that most remote areas in Nigeria to this day are yet to be reached in terms of internet services provision, whereas it is as good as absent in some other areas that can detect signals from a communication mast afar off.
The place of functional internet services in the effective running of virtual court proceedings can only be likened to that of diesel to an engine, and where the provision is below par? Your guess is as good as mine.
We are constrained to state that granted the need is due for the all-important baby that is virtual court proceedings, given the present realities, it must however pass through its own gestation period, lest we birth an evil child that will ruin the empire it was sought to take over. Once it’s worth doing at all, it’s worth doing well.
Any Way Forward?
Of course there are. The effect of doing something that does not contravene the law but yet is not supported by law is usually seen in the final result when it is declared unlawful and of course null and void and of no effect whatsoever.
This time last year, the issue of virtue court proceedings was not this burning and expedient, and one can see how abruptly society can demand a change of taste.
I think there is need to touch our extant laws to make virtual court a part of our adjudication process as did the National Assembly in 2011 when they birthed a new Evidence Act with section 84 thereof dealing with electronically generated evidence which before then was a much needed development but lacked the necessary legal framework for it to be actualised.
It took persuasive circumstances and arguments as well as judicial activism, largely obiter dictum, for courts to subscribe to the idea and make pronouncements thereon.
But with new Evidence Act in place, all birds went to roost, as the concept and its procedure and admissibility was well provided for, and it was not long and too difficult for all courts to get used to same.
We now have a new normal, and our laws should also reflect the new realities. The leadership of the legal profession, too, should provide the needed infrastructure as well as functional regulatory framework for virtual court proceedings which could be as much susceptible to abuse as it is to beneficial use. Even our justice system, I humbly submit, should grow systematically.
Uche Amulu, Esq. writes from Maitama, Abuja.