Resting the Virtual Court Sittings Debate

It is yet to be seen what those opposed to virtual court proceedings will do next with the release of the ‘Practice Directions 2020 for the COVID-19 Period’ by the Federal High Court. Davidson Iriekpen writes

Despite the reservations expressed in some quarters over virtual courts’ proceedings, the Federal High Court, last Monday, released guidelines and practice directions authorising judges of the court to adopt the policy for cases in all their judicial divisions nationwide. In a practice direction titled: ‘Practice Directions 2020 for the COVID-19 Period,’ released by the Chief Judge of the court, Justice John Tsoho, he said the policy essentially responded to growing calls for technology to be infused in court proceedings.

“Virtual proceeding is hereby adopted for adjudication in the Federal High Court. Virtual proceedings can be either by Zoom, Skype or any other audio-visual platform approved by the court,” he said.

Under the rules, which took effect from May 18, judges of the court cannot hear more than nine cases in a day. Judge and counsel involved are also expected to wear their robes for such proceedings. The new rules can, however, only be held with the consent of the parties and their counsel.

The practice directions state that cases for virtual proceedings shall be stated on the Cause List, posted on the court’s website and communicated to counsel and parties, either by e-mail, WhatsApp, text messages or any other electronic means. It also allows for service of court processes to be effected by e-mails, WhatsApp or as may be directed by the court, and the print out of the same shall be sufficient proof of service.

In keeping with federal and states COVID-19 regulations, the Chief Judge also made the wearing of facemasks and maintaining of social distancing mandatory. It added that every person within the premises of the court and inside the courtroom is to observe social and physical distancing of not less than two meters (six feet) apart from each other.

The practice directions also stipulate that at any given time, there shall not be a congregation of more than 10 persons within the court premises, except for purposes of court sittings, where there shall not be more than 20 persons inside the courtroom including the court staff and counsel at court sittings.

With the outbreak of COVID-19 in the country and the attendant lockdown and restriction of movements, most lawyers were frustrated that they were being denied the opportunity to practise their trade. This made the Chief Justice of Nigeria, Justice Tanko Muhammad, to direct that cases that were time bound and urgent be heard. But lawyers could not leave their houses, because of lockdowns imposed by states.
To ensure that the justice system was not grounded to a total halt, some senior lawyers wrote to the CJN to consider adoption of remote court sitting.

In one of such letters, the Justice Reform Project, in a letter dated April 14, 2020, urged the CJN “to consider issuing immediate Court Directions and Protocols to ensure the continued administration of justice in the face of the pandemic.”
This made the CJN in his capacity as the Chairman of the National Judicial Council (NJC) to set up a 10-man committee with Justice Tsoho as a member.

The committee, headed by Justice Olabode Rhodes-Vivour, was to come up with urgent practical strategic measures to ensure courts continue to function despite the lockdown and restrictions arising from the COVID-19 challenges. The committee, which submitted its report penultimate week, recommended far-reaching guidelines for the smooth running of courts during the pandemic including but not limited to the use of appropriate technology for virtual or remote hearings.

Apart from Justices Rhodes-Vivour, other members of the committee included the Acting President of the Court of Appeal, Justice Monica Monsem and Chief Judge of the Federal High Court, Justice John Tsoho. Also in the committee were President of the National Industrial Court, Justice B. B. Kanyip; Chief Judge of the FCT, Justice Ishaq Bello; Justice Kashim Zannah and Justice O. A. Ojo.

Three private practising Senior Advocates of Nigeria (SANs) were part of the committee. There were President of the Nigerian Bar Association (NBA), Paul Usoro, A. B. Mahmoud and D. D. Dodo.
The committee at the end of its assignment, among other recommendations in line with federal government’s guidelines for taming the spread of COVID-19, recommended the use of technology by way of virtual sitting in court proceedings, a decision the CJN and NJC approved.

However, some judges and lawyers were opposed to the virtual court sittings, saying it was unconstitutional. It was gathered that many of the judges, particularly at the high court level and the Court of Appeal, were of the view that there are constitutional hurdles to cross before Nigeria can adopt a system of remote hearing of cases.

Some of them who spoke to THISDAY on the condition of anonymity, expressed reservations about the adoption of the digital platforms of hearing cases without first, amending the Constitution. They reasoned that cases heard and determined under such arrangement were most likely to be set aside by the Supreme Court on the grounds that such hearings did not meet the constitutional thresholds for determining cases.

They hinged their position on Section 36 (3) and (4) of the Constitution, which provide that “(3) 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.

(4) 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…”
Citing cases already decided by the Supreme Court, the judges argued that the requirement for public hearing and determination of cases in Nigeria is mandatory as the operative word is “shall”, which means that it is compulsory.

“If you look at the authorities, I’m not sure hearing through Zoom or Skype will amount to public hearing,” one of the judges said. The authorities appear to support the position of the judges. For instance, the Supreme Court, in the case of Edibo v. the State (2007) 13 NWLR (Pt. 1051) p. 306, set aside the conviction and sentence of the 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 apex court held that the judge’s chambers were not a public place.
The question many judges are asking is, will a court hearing held through Zoom or Skype, be considered held in a public place?

Matters got to a head, when the Senate, penultimate week, held that until a bill is passed into law, court proceedings or hearings conducted via zoom, skype, WhatsApp video or any other social media platform or technological innovation would be deemed illegal.
For this reason, a bill seeking to legalise virtual court proceedings in line with present social distancing measures aimed at containing the spread of the coronavirus pandemic in the country passed for first reading on the floor of the chamber.

The sponsor of the bill, titled: ‘1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, 2020,’ Senator Michael Opeyemi Bamidele, said court proceedings or hearings conducted via technological innovation would be deemed legal after the Constitution has been amended to reflect the new proposals. This, according to him, endangers the results of proceedings held virtually.

So many questions have since arisen from the debate trailing the lofty idea, which include: Must everything be in black and white before it becomes operational? Can’t the judiciary on its own, think out of the box or fashion out how to run itself through administrative policy guidelines?

If the NJC approves a policy, can it be quashed or declared illegal by any court including the Supreme Court, when even the Supreme Court is already adopting the guidelines for its sittings? Finally, now that Federal High Court has issued Practice Direction 2020 for the COVID-19 Period, will they still say that virtual court proceedings are illegal?

This is why many are also wondering why the NJC, the highest judicial body in the country would approve an administrative policy to improve courts’ proceedings and some persons are expressing reservations about its legality. Not even when the Federal High Court, Court of Appeal and even the Supreme Court have started implementing the policy. For instance, since the lockdown, the Supreme Court has delivered over four key judgments virtually. Even the Lagos State High Court has long adopted the policy.

It is against this backdrop many have agreed with a senior lawyer, Mr. Kemi Pinheiro SAN, who disagreed with those who feel an amendment to the Constitution was required to accommodate virtual or remote hearings before the same can be adopted and conducted in Nigeria.
He stated that the Senate bill for an amendment to the Constitution to make provision for remote hearings legal is not necessary. The senior advocate opined that it was not everything that should be in the Constitution black and white.

“It is therefore not surprising that there is no provision in the 1999 Constitution (as amended) on how the executive arm of government is to hold its meetings (Federal Executive Council meetings) or for how the Senate or the House of Representatives would hold parliamentary sessions. Such issues have been easily dealt with by the rules set up by the executive and the legislative houses.

“In fact, recently the Federal Executive Council held its meeting virtually with no ruse as to requirement of constitutional amendment. Why then should there be a constitutional amendment specifying how the judiciary should hold court sessions after the Constitution has specified their powers and jurisdiction. This is clearly unnecessary.”