INTRODUCTION

The phrase “desperate times call for desperate measures” cannot be over flogged in a time like this. With the outbreak of the COVID-19 pandemic and the lockdown on public gatherings including court sessions, there is a growing necessity for the Nigerian justice delivery sector to consider the option of virtual hearings to deal with urgent matters and all matters in fact.

What’s good for the goose is good for the gander, several other nations including but not limited; England, India are using it and so far we hear success stories only.

The importance of a functional judiciary at all times cannot be overstated and even more in these times to maintain law and order.

It is no more news that A constitution alteration bill seeking to legalize virtual court proceedings has been introduced to the Senate. The bill was one of the few bills read for the first time at the start of plenary on the 12th of May 2020. “The bill titled 1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill”, sponsored by Michael Bamidele (APC, Ekiti Central), is aimed at amending relevant provisions of the Constitution of the Federal Republic of Nigeria, 1999 as amended, in giving legal support to virtual court proceedings.

ANALYZING SECTION 36(3) AND (4) OF THE 1999 CONSTITUTION OF NIGERIA

While we await the passage or otherwise of this bill, it is of keen necessity to critically analyze the relevant provision of the Constitution, particularly Section 36(3) and (4) of the 1999 Constitution of Nigeria. This analysis is aimed at revealing the fact that-

The aforementioned provision has enough capacity to accommodate virtual or remote court proceeding hence debunking the need for an alteration or constitutional amendment.
The phrase “fair hearing in public” is a test that has already been passed by the capacity contained in certain social media applications and other applications already in use.
For the purpose of clarity I will analyze section 36(3)and(4) provision under two rubrics.

FAIR HEARING IN “PUBLIC” IN CRIMINAL CASES

“36(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:

Provided that –

A court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety…”
This simply means that in a criminal matter (Murder, stealing, armed robbery), proceedings shall be held in public; however unlike the provision for civil cases, there are exceptions. Proviso (a) made mention of the fact that proceedings maybe excluded from persons aside the parties and the legal practitioner in:

Interest of defence
Public safety. According to the Black’s law dictionary (9th edition) Public safety means -the welfare and protection of the general public
It will therefore suffice to state that the situation at hand (Covid 19 pandemic) is a situation that requires public safety; hence it will perfectly fit into the exception of “public safety”. Therefore relying on the provision of section 36(4)(a) of the Constitution as regards criminal matters being heard without anyone else aside the parties and the legal practitioner for the sake of public safety, it is not only legal or appropriate it is also CONSTITUTIONAL. Certain proceedings under this category have been going on with social distancing maintained in the courts. However assuming without conceding that the exception of public safety does not exist in criminal matters, will it be unconstitutional to use the virtual court proceedings? The next rubric gives a perfect answer to the question

FAIR HEARING IN “PUBLIC” IN CIVIL CASES

For Civil Cases it is a bit more technical because the exception as provided for criminal cases is not present in civil cases. Let us consider the provisions of section 36(3).

36(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.

This simply means that any civil matter (contract, land, defamation, matrimonial matters etc) shall be held in public which ordinarily means in court where anyone interested can come and witness (watch) the proceedings. For a civil case, the Constitution did not necessarily provide an exception. However, I would like to postulate this argument from a deep-seated perspective.

VIRTUAL PROCEEDINGS AND THE PUBLIC

What does the word “public” mean? According to the Black’s Law Dictionary (9th edition) public means open or available for all to use. Webster dictionary defines public to mean- open to all. The question that should be the bone of contention is whether or not “Virtual court proceedings” sufficiently fulfills the obligation as placed by law (the Nigerian Constitution) as to the word “public”?. In my candid opinion it does.

A virtual court proceeding is a conceptual idea of a judicial forum that has no physical presence but still provides the same justice services that are available in court rooms.

Instagram live for instance is a feature on Instagram stories that allows users to stream video to followers and engage them in real time. When users broadcast live video streams on their accounts, a ring highlights their profile picture in Instagram stories to alert followers that they can view their live stream. You can do this for up to one hour and you can share a replay of it to your story. Everyone following you can see the live broadcast. Few practicals and any Judge or Lawyer who does not already know how it works can learn it.

Zoom is another application worth considering. Zoom is a web-based video conferencing tool with a local, desktop client and a mobile app that allows users to meet online, with or without video. Zoom users can choose to record sessions, collaborate on projects and share or annotate on one another’s screens, all with one easy-to-use platform. Zoom allows for Group video conferencing as it can host up to 500 participants and the screen can be shared hence those interacting can be viewed all at once. What beats the definition of “Public” more than this?

Therefore, considering the fact that the aforementioned applications amongst others can avail the public the opportunity to witness proceedings, I do not in any way see how section 36 of the Constitution as regards “hearing in public” can be breached. Infact I posit that considering the fact that these applications are open to all (open to all is the definition of Public according to webstar dictionary), Virtual court proceedings does not in any way breach the constitutional provisions of section 36(3)and(4).

CONCLUSION

Finally, considering the fact that the facilities of the aforementioned applications can make “public” a reality in the comfort of our homes, and also the fact that there is really no need to amend the constitution because in the nearest future it till be funny explaining how words like; zoom or the likes found its way into our dear constitution; virtual court proceedings should be embraced.

Relatively, the lockdown is getting eased a bit. In a statement on Friday, Justice Bello the Chief Justice of the F.C.T High Court said all courts in the F.C.T must resume on Monday 11th May 2020. However, a senior lawyer in India, KV Vishwanathan SC, who argued an application by video link before the India Supreme Court last week (prophetically), commented thus: “It was a very enriching experience and I think it is going to be the order of the day for the future”.[1]

Even with the pandemic, humans exist hence disputes will continue to exist. With the world on lock down and most courts still locked up, the show must still go on.

[1]See www.barandbench.com/news/litigation/this-is-how-supreme-court-judges-are-using-video-conference-to-hear-urgent-matters, accessed 13th May 2020