By Muiz Banire SAN
The reality of COVID-19 is not so much a matter for discussion
anymore, as the truth is that a ‘new normal’ has been created in
our world. The judiciary being no exception to this new dawn,
judges, lawyers and litigants are already scampering for
alternative ways of litigating other than physical appearance in
open court. In the process, virtual court hearing surfaced.
However, this appears not to be without its attendant challenges:
infrastructural, constitutional and even moral challenges.
There has been a raging debate over the constitutionality or
otherwise of the virtual court hearing, just as necessary
infrastructural requirements to make it possible and effective have
not been free from disputations. On my part, I have chosen
initially not to dabble into the constitutionality controversy,
despite my reservations, while the infrastructural and moral issues
remain.
Notwithstanding my personal hunch, considering its centrality to
the adoption, use and usefulness of virtual hearing, I will
tangentially touch on the issue. As you may be aware, Section 36(3)
& (4) of the Constitution of the Federal Republic of Nigeria, 1999
(as altered), provides for public hearing in the determination of
cases, civil and criminal, respectively. In other words, in the
hearing and determination of the rights of a citizen, the public
must have access to the sitting of the court. This provision has
generated so much controversy, since no member of the public can be
said to be physically present when proceedings are conducted
online. As of today, there is a sharp division among stakeholders,
judges, lawyers, legal scholars and litigants, on the
constitutionality or otherwise of virtual hearing in Nigerian
courts. To my mind, the controversy is unnecessary, since we can
avoid the looming danger in the face of an assured alternative that
has the capacity of putting the issue beyond any iota of doubt.
What is this choice that we have?
It is just a simple amendment of the Constitution that
automatically cures any grey area. The energy that the various
stakeholders have dissipated on this issue is multiple times more
than sufficient to bring what simple constitutional amendment would
produce. It has made the whole hoolabaloo a mere red herring.
Gladly enough, and with all sense of humility, I triggered this
process through my friend and brother, the chairman of the Senate
Committee on Judiciary, Senator Opeyemi Bamidele, who, in
collaboration with the Deputy Senate President, Senator Ovie
Omo-Agege, have , impressively, with all the necessary skill and
efficiency, championed the process of the amendment. In no distant
time, it will become a reality that will automatically put to rest
the unnecessary grandstanding that heralded the adoption of virtual
court hearing.
Addressing the issue of physical infrastructure necessary to
make virtual hearing a possibility, I am not too sure that our
environment is fertile for the operation of this most important
procedure by which, in view of the destabilising impact of the
COVID-19 pandemic, we can continue to give assurance of our
membership of civilised nations, where justice service delivery is
a fact of life. Our Internet penetration is less than 47 per cent
and, even where available, it is epileptic, to say the least. Thus,
proceedings conducted with this facility can never be smooth. It
will be marked by disruptions, ineffective communication and abrupt
end punctuating sober judicial deliberations. It is no news that we
experience freezing of online interactions half of the time.
The bandwidths of the various state and federal judiciaries are
of too low capacity and quality to engage any meaningful online
business. To the best of my knowledge, basic infrastructure is
lacking in most of the courts, where decrepit furniture tear
lawyers’ gowns and lawyers find it difficult to find seats to make
a decent appearance in court. Many collapse in court due to poor
aeration and malfunctional or inefficient cooling system.
Communication gadgets are virtually non-existent and, where
available, mostly inaudible.
When some of us started practice of law through the analogue
means of filing court papers physically in the registry, which
subsisted until a few years ago, filing of court processes used to
take less than an hour despite the imperfections of the system,
which we roundly condemned and yearned for the digital scintilation
of e-filing of court papers. Today, with e-filing, we struggle to
make it happen in two weeks, as mere payment of filing fees may not
be acknowledged for more than 10 days. The whole process has become
an albatross to legal practice and you wonder, if mere filing
cannot be made seamless, what would happen by the time trials are
being conducted by remote hearing? It would be a comedy by the time
the judge disappears from the Internet in the course of proceedings
and cannot not be found for more than 10 minutes, and by the time
His Lordship is back, counsel to the plaintiff or the defendant is
gone.
Almost two decades after court recording of proceedings was
introduced into the judiciary of Lagos State with the provision of
some gadgets and training of staff, the situation in many courts is
still deplorable. Today, fewer number of courts still enjoy those
facilities as many lack the devices. In others, the machines are
either spoilt or inefficient. Aside from the poorly trained
personnel, the welfare package is uninspiring, to say the least.
Even some of that equipment that is still operational is largely
obsolete. I do not want to paint the picture of the drama we
normally experience with the technology. That of communication
microphone is a story for another day. Let me go a step further. In
courts these days, the story of power supply is prefaced with the
cliché “gone are those days.” In many cases, courts have not been
able to sit due to lack of electricity supply and, in many cases,
the court generators would fail to come on. It is certain that no
meaningful online court proceedings can be effectively run in the
face of epileptic electricity supply.
I have gone this length to show the current challenges of poor
infrastructure in the courts prior to mounting another technology
on the dilapidated structure. Furthermore, there is sufficient
literature today showing the unsecure nature of Zoom, Skype and
Microsoft, the implication of which is that, in reality, what we
seek to adopt as a vehicle for litigation is not more than a
glorified Yahoo website. In most other jurisdictions that we want
to associate with, there are appropriate technologies dedicated to
virtual court hearings. These are products of huge investments by
the State, mostly managed by expert private technological firms and
not public officials. Thus, without mincing words, I believe that
we must do away with escapist shortcut syndrome.
While a whole lot of sectors are getting the deserved attention
mostly by way of blackmail, the judiciary does not need any
blackmail to command the required investment. My pain, however, is
that, rather than our judiciary taking advantage of the precarious
situation to plead her case, we have, in our characteristic
lackadaisical nature, been adopting temporary mechanisms that are
largely insecure.
My message, therefore, is that the judicial sector must insist
on the required investment now than ever before to ensure that
government makes provision for its needs. Now that the Central Bank
of Nigeria and other private sector consortiums are in the Father
Christmas mood, the judiciary must demand its entitlement.
It is quite heartening that the President has triggered the
financial autonomy of the judiciary into operation and, definitely,
the third arm of government shall no longer go cap in hand to the
executive to access its finances. It is hoped that, with this
much-sought autonomy, the judiciary would embark on wise
investments on provision of necessary infrastructural facilities
that will guarantee seamless dispensation of justice. The truth is
that, without the judiciary as the pedestal of dispute resolution,
there is no way the economy can survive, not to talk of growing.
However, I know that the question will be, what happens in the
interim pending when this major infrastructural investments would
happen, in view of the COVID-19 pandemic? I will recommend the
following approach as a stopgap. Judges should take on limited
schedule of cases with regulated entry into the courtroom and
adherence to COVID-19 safety guidelines. As existing court dockets
are too heavy to be taken care of by such ‘skeletal services’, we
can, in addition, adopt virtual hearing to complement the above but
it must be limited to taking of motions and processes capable of
adoption like originating summons but excluding trials.
Trials and only trials, I believe, must be handled within the
court room in the interim, while motions are taken by remote
hearing. I plead with all stakeholders to make honesty and
integrity our watchword in the process of virtual hearing. It is an
underlying element of success in other jurisdictions.
This is my modest contribution to the raging debate on the issue
of virtual court hearing in the face of the pandemic, while
reminding ourselves that the judiciary remains the bedrock of our
constitutional democracy. This point must be loudly made to the
other arms of government in no unmistakable terms.
Editors Note; Written by Muiz Banire SAN and
originally published in sunnewsonline.com[1]
By Muiz Banire SAN
The reality of COVID-19 is not so much a matter for discussion
anymore, as the truth is that a ‘new normal’ has been created in
our world. The judiciary being no exception to this new dawn,
judges, lawyers and litigants are already scampering for
alternative ways of litigating other than physical appearance in
open court. In the process, virtual court hearing surfaced.
However, this appears not to be without its attendant challenges:
infrastructural, constitutional and even moral challenges.
There has been a raging debate over the constitutionality or
otherwise of the virtual court hearing, just as necessary
infrastructural requirements to make it possible and effective have
not been free from disputations. On my part, I have chosen
initially not to dabble into the constitutionality controversy,
despite my reservations, while the infrastructural and moral issues
remain.
Notwithstanding my personal hunch, considering its centrality to
the adoption, use and usefulness of virtual hearing, I will
tangentially touch on the issue. As you may be aware, Section 36(3)
& (4) of the Constitution of the Federal Republic of Nigeria, 1999
(as altered), provides for public hearing in the determination of
cases, civil and criminal, respectively. In other words, in the
hearing and determination of the rights of a citizen, the public
must have access to the sitting of the court. This provision has
generated so much controversy, since no member of the public can be
said to be physically present when proceedings are conducted
online. As of today, there is a sharp division among stakeholders,
judges, lawyers, legal scholars and litigants, on the
constitutionality or otherwise of virtual hearing in Nigerian
courts. To my mind, the controversy is unnecessary, since we can
avoid the looming danger in the face of an assured alternative that
has the capacity of putting the issue beyond any iota of doubt.
What is this choice that we have?
It is just a simple amendment of the Constitution that
automatically cures any grey area. The energy that the various
stakeholders have dissipated on this issue is multiple times more
than sufficient to bring what simple constitutional amendment would
produce. It has made the whole hoolabaloo a mere red herring.
Gladly enough, and with all sense of humility, I triggered this
process through my friend and brother, the chairman of the Senate
Committee on Judiciary, Senator Opeyemi Bamidele, who, in
collaboration with the Deputy Senate President, Senator Ovie
Omo-Agege, have , impressively, with all the necessary skill and
efficiency, championed the process of the amendment. In no distant
time, it will become a reality that will automatically put to rest
the unnecessary grandstanding that heralded the adoption of virtual
court hearing.
Addressing the issue of physical infrastructure necessary to
make virtual hearing a possibility, I am not too sure that our
environment is fertile for the operation of this most important
procedure by which, in view of the destabilising impact of the
COVID-19 pandemic, we can continue to give assurance of our
membership of civilised nations, where justice service delivery is
a fact of life. Our Internet penetration is less than 47 per cent
and, even where available, it is epileptic, to say the least. Thus,
proceedings conducted with this facility can never be smooth. It
will be marked by disruptions, ineffective communication and abrupt
end punctuating sober judicial deliberations. It is no news that we
experience freezing of online interactions half of the time.
The bandwidths of the various state and federal judiciaries are
of too low capacity and quality to engage any meaningful online
business. To the best of my knowledge, basic infrastructure is
lacking in most of the courts, where decrepit furniture tear
lawyers’ gowns and lawyers find it difficult to find seats to make
a decent appearance in court. Many collapse in court due to poor
aeration and malfunctional or inefficient cooling system.
Communication gadgets are virtually non-existent and, where
available, mostly inaudible.
When some of us started practice of law through the analogue
means of filing court papers physically in the registry, which
subsisted until a few years ago, filing of court processes used to
take less than an hour despite the imperfections of the system,
which we roundly condemned and yearned for the digital scintilation
of e-filing of court papers. Today, with e-filing, we struggle to
make it happen in two weeks, as mere payment of filing fees may not
be acknowledged for more than 10 days. The whole process has become
an albatross to legal practice and you wonder, if mere filing
cannot be made seamless, what would happen by the time trials are
being conducted by remote hearing? It would be a comedy by the time
the judge disappears from the Internet in the course of proceedings
and cannot not be found for more than 10 minutes, and by the time
His Lordship is back, counsel to the plaintiff or the defendant is
gone.
Almost two decades after court recording of proceedings was
introduced into the judiciary of Lagos State with the provision of
some gadgets and training of staff, the situation in many courts is
still deplorable. Today, fewer number of courts still enjoy those
facilities as many lack the devices. In others, the machines are
either spoilt or inefficient. Aside from the poorly trained
personnel, the welfare package is uninspiring, to say the least.
Even some of that equipment that is still operational is largely
obsolete. I do not want to paint the picture of the drama we
normally experience with the technology. That of communication
microphone is a story for another day. Let me go a step further. In
courts these days, the story of power supply is prefaced with the
cliché “gone are those days.” In many cases, courts have not been
able to sit due to lack of electricity supply and, in many cases,
the court generators would fail to come on. It is certain that no
meaningful online court proceedings can be effectively run in the
face of epileptic electricity supply.
I have gone this length to show the current challenges of poor
infrastructure in the courts prior to mounting another technology
on the dilapidated structure. Furthermore, there is sufficient
literature today showing the unsecure nature of Zoom, Skype and
Microsoft, the implication of which is that, in reality, what we
seek to adopt as a vehicle for litigation is not more than a
glorified Yahoo website. In most other jurisdictions that we want
to associate with, there are appropriate technologies dedicated to
virtual court hearings. These are products of huge investments by
the State, mostly managed by expert private technological firms and
not public officials. Thus, without mincing words, I believe that
we must do away with escapist shortcut syndrome.
While a whole lot of sectors are getting the deserved attention
mostly by way of blackmail, the judiciary does not need any
blackmail to command the required investment. My pain, however, is
that, rather than our judiciary taking advantage of the precarious
situation to plead her case, we have, in our characteristic
lackadaisical nature, been adopting temporary mechanisms that are
largely insecure.
My message, therefore, is that the judicial sector must insist
on the required investment now than ever before to ensure that
government makes provision for its needs. Now that the Central Bank
of Nigeria and other private sector consortiums are in the Father
Christmas mood, the judiciary must demand its entitlement.
It is quite heartening that the President has triggered the
financial autonomy of the judiciary into operation and, definitely,
the third arm of government shall no longer go cap in hand to the
executive to access its finances. It is hoped that, with this
much-sought autonomy, the judiciary would embark on wise
investments on provision of necessary infrastructural facilities
that will guarantee seamless dispensation of justice. The truth is
that, without the judiciary as the pedestal of dispute resolution,
there is no way the economy can survive, not to talk of growing.
However, I know that the question will be, what happens in the
interim pending when this major infrastructural investments would
happen, in view of the COVID-19 pandemic? I will recommend the
following approach as a stopgap. Judges should take on limited
schedule of cases with regulated entry into the courtroom and
adherence to COVID-19 safety guidelines. As existing court dockets
are too heavy to be taken care of by such ‘skeletal services’, we
can, in addition, adopt virtual hearing to complement the above but
it must be limited to taking of motions and processes capable of
adoption like originating summons but excluding trials.
Trials and only trials, I believe, must be handled within the
court room in the interim, while motions are taken by remote
hearing. I plead with all stakeholders to make honesty and
integrity our watchword in the process of virtual hearing. It is an
underlying element of success in other jurisdictions.
This is my modest contribution to the raging debate on the issue
of virtual court hearing in the face of the pandemic, while
reminding ourselves that the judiciary remains the bedrock of our
constitutional democracy. This point must be loudly made to the
other arms of government in no unmistakable terms.
Editors Note; Written by Muiz Banire SAN and
originally published in sunnewsonline.com[1]