Are Virtual Court Hearings Constitutional? (Part 1)

Introduction
Repayment
There is no doubt that, man by nature abhors change. He prefers a familiar terrain. Said Tiny Buddah, “there are three solutions to every problem: accept it, change it or leave it. If you can’t accept it, change it. If you can’t change it, leave it.” In his epic book, “The Prince”, Niccolo Machiavelli told us that, “there is nothing more difficult to do or more doubtful of success than to initiate a new order of things, for the lukewarm defenders are those who profit by the old order”. True, as Aristotle said, “nature abhors a vacuum” (horror vacui).

Virtually every Nigerian has been complaining about our slow, clogged justice system. But, no one wants a deliberate and sudden change. It is like the truism that everyone wants to go to heaven, but no one wants to die. Yet, you must first die before you go to heaven. It was Albert Einstein, the physicist who developed the theory of relativity, that once famously declared that “insanity is doing the same thing over and over again, and expecting different results”. What then is the solution? Hippocrates, the father of medicine, provides it: “a desperate disease requires a dangerous remedy”.

This is precisely what the Covid-19 induced virtual court hearings, has confronted Nigeria with. To deal with it desperately. It has advantages and disadvantages, especially in a developing country like Nigeria, with very poor infrastructure. The biggest challenge is whether virtual court hearings can be accommodated within Nigeria’s constitutional landscape, without first amending the Constitution. I humbly submit no. This is because the Constitution, being the font et origo and grundnorm, represents the embodiment of fundamental regulations and principles guiding a nation State.

Definition of Terms
First, let us put our discourse in its proper context, by navigating through the terms used in virtual hearing. ‘Virtual’ means ‘near enough’, as against its opposite, ‘physical’ or ‘absolute’. ‘Virtual’ means artificial reality, artificial environment or computerised simulation. Virtual court hearings therefore, mean court hearings that enable Judges, Counsel, court staff, witnesses, security personnel and other participants or stakeholders to attend court hearings online, by means of Zoom, Skype and such other computer/internet devices. The sitting of courts in the ‘open’ as used in Section 36 of the Constitution means not shut, unbottled, unfastened, agape, unlocked, free from obstructions, unblocked. “Public” as used in the same Section 36 means, open or available to all for use, share or enjoy; a place open or visible to the public; public space or place; public area or location to which all have access without restriction.

A ‘zoom meeting’ means a video conferencing meeting that is held, using zoom. One can join such meetings, through a webcam or phone. There is usually provided a “zoom room”, which is the physical hardware setup which allows the conferees launch a zoom meeting from the zoom conference room. It allows for telecommuting and interaction.
Skype teleconferencing (formerly known as Microsoft Lync Server) is a unified communications (UC) platform that integrates common channels of business communication, online meetings, instant messaging (IM), voicemail, file transfers, video conferencing. It can be deployed on premises, in the cloud, or used as a hybrid service.

Legal Issues in Virtual Court Hearings in Nigeria
The guidelines approved by the National Judicial Council (NJC) for the conduct of court proceedings in the period of the Covid-19 pandemic has however, thrown up a litany of legal issues. This includes the constitutionality of the virtual court proceedings, in line with the provisions of the Constitution. Also, some expected judicial outcomes from some of these irregular provisions of virtual court proceedings online may not stand the test of the law, as they are likely going to create loopholes which parties could exploit on appeal when the trial is not in their favour.

The NJC, in some of its guidelines, directed the Nigerian courts to provide fast-speed pervasive and reliable internet connectivity, while the end-user would provide hardware devices such as desktops, laptops, tablets and smartphones. This is to serve for the virtual sittings using collaborative platforms such as MS365, Zoom, Google meetings and other tools with electronic-recording functionalities. Other measures include checks at court premises, filing of court processes online, payment of filing fees, service of hearing notices, virtual or remote sittings, physical court sittings and general provisions. Many States’ judiciaries have since followed suit, rolling out Covid-19 Practice Directions meant to tame the unhealthy space stricture engendered by Covid-19.

Virtual court hearings, which are proceedings that are conducted electronically or through the use of electronic means, could be hybrid or fully virtual. It is hybrid when the court proceedings are held with some of the parties in a particular place, while others join online. This may be in two forms: The Judge, Clerk and Witness attend open court alone, whilst others join in online; or the Judge, Clerk and Lawyers appear in open court alone, while the witnesses join in online. On the contrary, the fully virtual method envisages a situation where all parties join in from separate and different locations. The Judge, Lawyers, Witnesses, Clerk etc., will all join virtually.

Other Jurisdictions
Across the world, some countries have since embraced this new technology. India and the United Kingdom have been able to successfully test-run, and can effectively use virtual hearings for court proceedings. Bolivia, Ecuador, and Argentina have been able to introduce virtual court hearings only for pre-trial detainees. USA, Australia, Canada, Kenya, Bangladesh, have all adopted virtual court hearings through video conferencing, teleconference, Skype, Zoom, Gmail, etc, thus stamping their footprints in the digital space.
According to Keith Kaplan “a virtual court is a conceptual idea of a judicial forum that has no physical presence, but still provides the same justice services that are available in courtrooms”. Access to virtual courts would, however, be limited to online access, videoconferencing and teleconferencing.

Videoconference technology allows witnesses to testify at trial, without being physically present in the courtroom. In contrast to a traditional, in-person witness, the videoconference witness is not physically present in the courtroom, but ‘virtually present’ through the use of technology. This enables the witness and those in the courtroom to interact.

Usual Method of Court Proceedings in Nigeria
In our conventional method of justice delivery in Nigeria, we are used to a setting where we have a daise for the Judges, who face the Lawyers, and the litigants. The members of the public sit at the back of the court room, watching proceedings. The court system is adversarial in nature, and this places a duty on Judges, to be impartial and passive in the course of proceedings. In view of the passive posture taken and the role played by a Judge in the adversarial system, the litigants and their Lawyers play a more active role in the adjudicatory process. The Nigerian Constitution guarantees every litigant a right to fair hearing, and equal access to these courts. As noted by the Supreme Court in the case of EHOLOR v OSAYANDE (1992) LPELR-8053(SC), the role of the Judge is to hold the balance between the contending parties, and to decide the case on the preponderance of the evidence brought by both sides, and in accordance with the rules of a particular court and the procedure and practice chosen by the parties themselves in accordance with those court rules. A Judge, under the system, is not expected to act or give the impression that he has descended into the arena of the conflict, and have his sense of justice blurred. Lawyers and litigants must be abreast with and ensure compliance with extant rules and processes, as a good case may be struck out and/or dismissed for failure to comply with laid rules and procedures. Similarly, a bad case may sail through due to lapses on any of the parties’ part.

Courts are created by the Constitution and statutes, to enforce law and order for the public good. They are impartial for dispute resolution, between parties who seek redress for violation of a legal right. Both criminal and civil matters are heard in the same court in Nigeria, but with different court rules and procedures guiding each genre.

Coming of Age: Nigeria’s first Virtual Court Hearing
The first virtual court session in Nigeria, tagged ID/9006C/2019, was held at the Ikeja High Court in Lagos, where one Mr. Olalekan Hameed was sentenced to death, for the murder of 76-year-old Mrs. Jolasun Okunsanya, on 1st December, 2018. In that case, Mr. Olalekan Hameed was sentenced to death by hanging for the murder of Mrs Jolasun Okunsanya, the mother of his employer, Adetayo. Justice Mojisola Dada blazed the trial, and delivered the judgement in the Lagos State Judiciary’s maiden virtual court session.

The proceedings were earlier approved by Lagos State Chief Judge, Justice Kazeem Alogba, in line with the Lagos State Judiciary Remote Hearing of Cases Covid-19 Pandemic Period Practice Directions, adopted on 4th May, 2020. The court session for the charge was held online via Zoom. It began at 11.am, and ended before 2pm. The Judge, Defendant, his team of counsel, the prosecution team led by Lagos State Solicitor-General, Ms Titilayo Shitta-Bey, and all witnesses participated in the session remotely from different locations, by using Zoom. A number of participants, were in attendance. This included the State’s Attorney-General and Commissioner for Justice, Moyosore Onigbanjo, SAN, the prosecutor, Ms. Titilayo Shitta-Bey, and some Senior Advocates of Nigeria, such as Funke Adekoya, Tayo Oyetibo, Olukayode Enitan, amongst others. The presiding Judge, Justice Mojisola Dada, sentenced the Defendant to death, thus:

“The sentence of this court upon you, Olalekan Hameed, is that you be hanged by the neck until you are pronounced dead and may the Lord have mercy upon your soul. This is the virtual judgement of the court.”
The nagging question, however, is whether this conviction and sentence can stand the heat and fire of appeal, against the background of the clear provisions of Section 36 of the 1999 Constitution. I harbour serious doubts. Subsequently, I shall demonstrate the reasons for my misgivings.

QUOTE FOR THE WEEK
“Human progress is neither automatic nor inevitable…every step toward the goal of injustice requires sacrifice, suffering, and struggle; the tireless exertions and passionate concern of dedicated individuals.”- Martin Luther King Jr