In the words of Machiavelli in the book, The Prince,
‘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‘.
Recently, it was reported that there were concerns as to the
unconstitutionality of the current practice in Lagos and Borno
embracing remote, virtual hearing of cases, as these cases could be
overturned by the Supreme Court of Nigeria. In a proactive
response, the Senate introduced a Bill proposing an amendment to
the Constitution. Senator Opeyemi Bamidele, Chairman of the Senate
Committee on Judiciary, Human Rights and Legal Matters, brilliantly
introduced the Constitution of the Federal Republic of Nigeria
(Alteration) Bill, 2020 (SB. 418), which has sailed the first
reading.
This Bill is desirable and should proceed; however, my position
is that pending its implementation which has to go through both the
entire National Assembly, as well as all 36 Houses of Assembly in
each states of Nigeria, there is nothing unconstitutional about the
current remote or virtual sitting practiced in Lagos or Borno
state, or any state in Nigeria, as long as the practice procedure
is amended to accommodate this reality, especially with essential
cases. In fact, the cost and timeframe for constitutional amendment
does not support extensive deployment of legislative time, national
resources, on this issue, especially since there is nothing
unconstitutional about it.
And my reasons for these are clear.
Firstly, the Section 36 (3) cited by those stating the
unconstitutionality of using teleconferencing and
video-conferencing tools, especially for essential cases at this
time, must be read alongside Section 36 (1) which seeks to ensure
fair hearing for persons within a reasonable time. It must not be
interpreted in isolation.
- (1) In the determination of his civil rights and
obligations, including any question or determination by or against
any government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality. - (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.
Therefore, how can we claim to protect the rights to fair
hearing within a reasonable time as provided in Section 36 (1)
during the COVID-19 pandemic, without embracing remote hearing?
For public good and fair hearing, Section 36 (3) request ‘court
proceedings’ and ‘decisions’ be reached in public. But to
those citing remote hearing as unconstitutional, I ask ‘how can the
word public be used to replace physical? Aren’t they mutually
exclusive words?
It is important to state that there is nowhere in the Nigerian
constitution where ‘public’ is defined as ‘physical’. The
Oxford dictionary defines the word public as “done, perceived or
existing in open view”. If we take this literarily, does using
video conferencing for lawyers to present their cases prevent
proceedings from holding in open view? No. To argue otherwise is to
limit our court to a place only, rather than ‘a place’ and ‘a
service’ – the service of justice.
The way videoconferencing tools work is such that it can always
be made available for ‘open view’. For example, we hold seminars or
workshop on Zoom, Microsoft Team, and participants can watch online
or participate if allowed. The big challenge here is the urgent
need for training lawyers, judges, and judicial officials in the
use of technology, as well the need for infrastructure to support
remote sittings.
If judges want to interpret Section 36 (3) literarily to mean
sitting in court, then the judges can sit in Court and allow
electronic filling of cases and lawyers to argue via video
conferencing, etcetera. As to decision, judges can also decide to
sit in their court room, broadcast same on a virtual platform, and
deliver judgment there, instead of their private office, whilst
opening same court room to the public, but at this time of
COVID-19, I doubt if anyone would dare gather, as there is
restriction on number and fear.
Therefore, the COVID-19 pandemic has redefined the subject of
accessibility.
I submit that by ‘public’, access is the key here. At the
moment, video-conferencing is more accessible to people (with
internet) than physical access, because nobody is allowed by law to
gather to a certain number and the fear of COVID-19 is the
beginning of prevention. This practically suggests that remote
hearing serves Section 36 (3) better than physical court in its
practical sense ‘at this time’.
Even the freedom of religion to gather and that of movement are
now subject to limits. Would that make this current practice
unconstitutional? In fact, it is not an issue as to substance, but
procedure, and the amendment of practice direction as we have seen
brilliantly done by Lagos High Court, as well as guidelines by NJC
suffices.
That serves a wakeup call to the Supreme Court, to come to terms
with this global reality and trend of remote, virtual hearing. Or
how else, how can a legal practitioner travel to the Supreme Court
in the wake of the inter-state lockdown. The reality is that laws
are made for man, not otherwise. Last week, in England and Wales,
more than 80 per cent of the country’s court and tribunal caseload
was handled remotely, without reported mishap. True, these are the
not the most complex cases. But they form the bulk of the daily
work of justice systems. One tribunal, for special educational
needs and disability, even ate into its backlog. Such are the
efficiencies of online hearing rooms.
The National Assembly should be allowed to focus on more
important matters such as data protection and re-introduction of
the digital rights bill, which was pending in the last National
Assembly, because data is the new oil. An attempt to legislative on
remote, virtual hearing may be an attempt to legislate innovation.
We must thread with care because innovation is not static.
Even if the National Assembly still seeks to amend the court
procedure, it should focus legislating for a more permanent
technological upgrade to be set out by a more elaborate process, it
should focus on legislation that does not merely integrate
technology into the court process, but transforms the judicial (cum
legal) process. I suspect that is what Barrister Opeyemi Bamidele
seeks to achieve on the long run, and it is commendable.
Timi Olagunju is a tech lawyer and
policy consultant. He tweets @timithelaw
In the words of Machiavelli in the book, The Prince,
‘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‘.
Recently, it was reported that there were concerns as to the
unconstitutionality of the current practice in Lagos and Borno
embracing remote, virtual hearing of cases, as these cases could be
overturned by the Supreme Court of Nigeria. In a proactive
response, the Senate introduced a Bill proposing an amendment to
the Constitution. Senator Opeyemi Bamidele, Chairman of the Senate
Committee on Judiciary, Human Rights and Legal Matters, brilliantly
introduced the Constitution of the Federal Republic of Nigeria
(Alteration) Bill, 2020 (SB. 418), which has sailed the first
reading.
This Bill is desirable and should proceed; however, my position
is that pending its implementation which has to go through both the
entire National Assembly, as well as all 36 Houses of Assembly in
each states of Nigeria, there is nothing unconstitutional about the
current remote or virtual sitting practiced in Lagos or Borno
state, or any state in Nigeria, as long as the practice procedure
is amended to accommodate this reality, especially with essential
cases. In fact, the cost and timeframe for constitutional amendment
does not support extensive deployment of legislative time, national
resources, on this issue, especially since there is nothing
unconstitutional about it.
And my reasons for these are clear.
Firstly, the Section 36 (3) cited by those stating the
unconstitutionality of using teleconferencing and
video-conferencing tools, especially for essential cases at this
time, must be read alongside Section 36 (1) which seeks to ensure
fair hearing for persons within a reasonable time. It must not be
interpreted in isolation.
- (1) In the determination of his civil rights and
obligations, including any question or determination by or against
any government or authority, a person shall be entitled to a fair
hearing within a reasonable time by a court or other tribunal
established by law and constituted in such manner as to secure its
independence and impartiality. - (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.
Therefore, how can we claim to protect the rights to fair
hearing within a reasonable time as provided in Section 36 (1)
during the COVID-19 pandemic, without embracing remote hearing?
For public good and fair hearing, Section 36 (3) request ‘court
proceedings’ and ‘decisions’ be reached in public. But to
those citing remote hearing as unconstitutional, I ask ‘how can the
word public be used to replace physical? Aren’t they mutually
exclusive words?
It is important to state that there is nowhere in the Nigerian
constitution where ‘public’ is defined as ‘physical’. The
Oxford dictionary defines the word public as “done, perceived or
existing in open view”. If we take this literarily, does using
video conferencing for lawyers to present their cases prevent
proceedings from holding in open view? No. To argue otherwise is to
limit our court to a place only, rather than ‘a place’ and ‘a
service’ – the service of justice.
The way videoconferencing tools work is such that it can always
be made available for ‘open view’. For example, we hold seminars or
workshop on Zoom, Microsoft Team, and participants can watch online
or participate if allowed. The big challenge here is the urgent
need for training lawyers, judges, and judicial officials in the
use of technology, as well the need for infrastructure to support
remote sittings.
If judges want to interpret Section 36 (3) literarily to mean
sitting in court, then the judges can sit in Court and allow
electronic filling of cases and lawyers to argue via video
conferencing, etcetera. As to decision, judges can also decide to
sit in their court room, broadcast same on a virtual platform, and
deliver judgment there, instead of their private office, whilst
opening same court room to the public, but at this time of
COVID-19, I doubt if anyone would dare gather, as there is
restriction on number and fear.
Therefore, the COVID-19 pandemic has redefined the subject of
accessibility.
I submit that by ‘public’, access is the key here. At the
moment, video-conferencing is more accessible to people (with
internet) than physical access, because nobody is allowed by law to
gather to a certain number and the fear of COVID-19 is the
beginning of prevention. This practically suggests that remote
hearing serves Section 36 (3) better than physical court in its
practical sense ‘at this time’.
Even the freedom of religion to gather and that of movement are
now subject to limits. Would that make this current practice
unconstitutional? In fact, it is not an issue as to substance, but
procedure, and the amendment of practice direction as we have seen
brilliantly done by Lagos High Court, as well as guidelines by NJC
suffices.
That serves a wakeup call to the Supreme Court, to come to terms
with this global reality and trend of remote, virtual hearing. Or
how else, how can a legal practitioner travel to the Supreme Court
in the wake of the inter-state lockdown. The reality is that laws
are made for man, not otherwise. Last week, in England and Wales,
more than 80 per cent of the country’s court and tribunal caseload
was handled remotely, without reported mishap. True, these are the
not the most complex cases. But they form the bulk of the daily
work of justice systems. One tribunal, for special educational
needs and disability, even ate into its backlog. Such are the
efficiencies of online hearing rooms.
The National Assembly should be allowed to focus on more
important matters such as data protection and re-introduction of
the digital rights bill, which was pending in the last National
Assembly, because data is the new oil. An attempt to legislative on
remote, virtual hearing may be an attempt to legislate innovation.
We must thread with care because innovation is not static.
Even if the National Assembly still seeks to amend the court
procedure, it should focus legislating for a more permanent
technological upgrade to be set out by a more elaborate process, it
should focus on legislation that does not merely integrate
technology into the court process, but transforms the judicial (cum
legal) process. I suspect that is what Barrister Opeyemi Bamidele
seeks to achieve on the long run, and it is commendable.
Timi Olagunju is a tech lawyer and
policy consultant. He tweets @timithelaw