Reviewing The Constitutionality Of Vitrual Hearings – Publicity In The Context Of Nigeria’s Technological Advancements

By Chukwuebuka S. Okeke (B.Sc., LL.B., LL.M., A.CArb)

The world is been afflicted by a pandemic on a scale that has not been seen since the Spanish Flu.

Since the middle of March, 2020, just about every facet of our communal life has felt the pinch of the novel coronavirus which is officially known as COVID-19. The novelty of this pandemic has left us grappling for solutions and the government had deployed full and partial lockdowns as a tool to mitigate the transmission of the disease.

The justice delivery sector has also felt the crunch of the pandemic. The Honourable Chief Justice of Nigeria ordered the shutdown of Courts all over the country in order to protect the stakeholders in the sector. However, the scientific consensus is that the COVID-19 pandemic is going to be with us for an extended period, until an effective vaccine is developed, or society achieves some form of herd immunity. As a result, necessity has become the mother of invention, and the Courts have been forced to adapt to our present realities.

In this regard, various technologies have been adopted to ensure that matters can been heard and determined by the Court through the deployment virtual hearings. It is in the public domain that the Lagos, Ekiti and Borno State judiciaries have deployed the use of technology to conduct virtual hearings, and have issued practice directions to regulate these hearings. Other States and specialized Courts are also in the process of adopting the same process.

However, the novelty of virtual hearings has raised serious constitutional questions especially in the context of Section 36(3) and (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered) [“the Constitution”]. This constitutional question centers entirely on whether such virtual hearings are ‘public’ so that proceedings conducted virtually would pass constitutional muster.

On this issue, there have been divergent views, which can be divided into two schools of thought i.e. the proponents of virtual hearings who believe that such proceedings are constitutional; and opponents of virtual hearings who argue that such proceedings are not sufficiently public, and are thus unconstitutional.

In this regard, I must state that I have benefitted greatly from: (a) the mock ruling of Affen J. in the mock action between K. Ogunwumiju, SAN and J. S. Okutepa, SAN which of the proponent school; and (b) the paper by Chief Adegboyega Awomolo, SAN titled Virtual Court Hearing Does not Pass the Test for Proceedings Conducted in Public; there is a Need for Constitutional Amendment, which is of the opponent school.

After a holistic review of the applicable law, I find myself on the side of the proponents of virtual hearings and accordingly submit that such hearings are constitutional. In marshalling out my opinion, I shall make my submissions using three subheadings i.e.: (i) The Interpretation Question; (ii) The Obstacle Question; and (iii) The Validity of the Practice Directions.

The Interpretation Question

As stated above, the crux of the constitutional issue stems from the provision of Section 36(3) and (4) of the Constitution. For the sake of clarity, these provisions of the Constitution are reproduced below:

(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 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 of tribunal

The common denominator in the constitutional provisions reproduced above is the presence of the phrase “in public” in both subsections. Accordingly, in determining the constitutionality of virtual hearings, the central issue is: can such hearing be said to have taken place “in public”? The Constitution does not provide an express answer, as “in public” is not a defined term. Thus, finding the meaning of “in public” as used in Section 36 becomes an exercise in constitutional interpretation.

In 1980 and 1981 respectively, the Supreme Court decided two locus classicus cases on the canons of constitutional interpretation i.e. Nafiu Rabiu v. State [1981] 2 NCLR 293 and A.G. Bendel State v. A.G. Federation [1981] NSCC 314. These two decisions are the leading authorities on principles applicable to constitutional interpretation, and I would place reliance on these decisions to find the meaning of “in public” as used in Section 36.

In Nafiu Rabiu v. State [1981] 2 NCLR 293 at 327 Sir Udoma, JSC stated as follows:

“My Lords, in my opinion, it is the duty of this court to bear constantly in mind the fact that the present Constitution has been proclaimed the Supreme Law of the Land; that is a written and organic instrument meant to serve not only the present generation, but also several generations yet unborn … the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, mere technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution. And where the question is whether the Constitution has used an expression in the wider or in the narrower sense, in my view, this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation, unless there is something in the text or in the rest of the Constitution to indicate that the narrower interpretation will best carry out the objects and purposes of the Constitution.

My Lords, it is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maixm ut res magis valeat quam pereat.”

In A.G. Bendel State v. A.G. Federation [1981] NSCC 314 at 372 – 373, Idigbe, JSC gave the twelve commandments of constitutional interpretation. I shall refer to the commandments relevant to the instant issue:

“In the interpretation and construction of our 1979 Constitution, I must bear the following principles of interpretation in mind …

(4) The language of the Constitution where clear and unambiguous must be given its plain evident meaning.

(5) The Constitution of the Federal Republic of Nigeria is an organic scheme of government to be dealt with as an entirety; a particular provision cannot be disserved from the rest of the Constitution.

(6) While the language of the constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning.

(11) The principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used, measure the purpose and scope of its provisions.

(12) Words of the Constitution are therefore not to be read with stultifying narrowness.”

A central theme that runs through the decisions in Rabiu and A.G. Bendel is that the Constitution is an “organic instrument” which prescribes the “framework and principles of government (in) broad and general terms”. This foundational document is not fixed in time as it is “intended to apply to the varying conditions” by prescribing the system of government for “not only the present generation, but also several generations yet unborn”.

Thus, being a document that is “broad and general in terms”, the approach to the construction of such a document should be “one of liberalism” arising from the knowledge that “while the language of the constitution does not change, the changing circumstances of a progressive society for which it was designed yield new and fuller import to its meaning”!

When society changes, the Constitution should not be construed with “stultifying narrowness”. In such situations, the Constitution must be allowed to become a living document which “yield(s) new and fuller import to its meaning”. The advancement of the meaning of constitutional provisions is to be guided by the “principles upon which the Constitution was established rather than the direct operation or literal meaning of the words used”. With this principles in mind, I turn to the construction of the phrase “in public” as used in Section 36(3) and (4) of the Constitution.

Admittedly, when the Constitution came into force in 1999, the use of technology as a medium to facilitate the interconnectivity of persons was not readily available in Nigeria. We were still about six years away from the GSM boom and the internet was almost none-existent. Thus, when the draftsmen used the phrase “in public” in Section 36, I am almost certain that they had a courtroom in mind – Menakaya v. Menakaya [2001] 16 NWLR (Pt. 738) 203 at 249.

However, fast forward 21 years, the interconnectivity of persons through the use of various audio-visual media is now a mainstay. Letter writing is a dying art as people are able to communicate using mobile phone, emails, etc. Local and international meetings need not be in person anymore, as a plethora of technological devices and applications, which allows for multi-person communication are now readily available. Markets have moved online bringing with it the ability for Nigerians to trade both locally and internationally with the click of a few buttons.

Some national examinations are now computer based, eliminating the logistical nightmare of single day exams. The financial markets have not been left behind, as banks now offer an array of instant banking services using various internet platforms. The legal profession has adopted the use of electronic law reports which are now a popular sight in Judgment of various Courts. The decisions of many State and specialized Courts are now published online, making them available to people from all works of life.

Even the criminal world has tapped into technology, as internet fraud has become a headache for various law enforcement agencies.  Without a doubt, computer literacy has blossomed, and Nigeria is now a bonafide citizen of a global and interconnected world.

The question then is: in the context of the “changing circumstances” of a Nigerian society which has seen a dramatic progression in the use and application of science and technology; should we continue to construe the phrase “in public” in a stultifying manner, so as to limit it to mean ‘in a courtroom’? I believe that the decisions in Rabiu and A.G. Bendel would abhor such an approach! I submit that the phrase “in public” must be interpreted liberally, so that it can take on the “new and fuller” meaning which it has organically acquired as a result of the development of human society.

Today, the phrase “in public” simply means “in view of other people, when others are present”[i] or “in a place where one can be seen by many people”[ii] or “when a group of people are present”[iii] or where “people in general hear about it or can see it”.[iv] These definitions show that in the year 2020, the phrase “in public” cannot be construed narrowly to mean in a courtroom. In an era where information moves instantaneously across the globe, “in public” simply means any place where information, in its various forms, is available to be viewed and heard by people. As a result of modern technology, this place can be either physical or virtual.

Would this “new and fuller” meaning accord with the “principles upon which the Constitution was established”? I submit that the answer is in the affirmative. The policy behind public hearings has never been the need to use particular courtrooms for adjudication. This is why it is popularly said that the court is wherever the Judge sits. The fact that a courtroom is not a necessary component of public hearing is typified by the fact that even a High Court can be properly be constituted at the locus in quo (i.e. the place where the dispute arose) without the need for all of the formalities of a courtroom.

To the contrary, the policy underpinning public hearings has remained the need to avoid cloistered justice and secret trials, which may allows one party to steal a march on his/her opponent. Public hearings ensure that the administration of justice is carried out in the open, so that uninterested bystanders can see and attest to the fact that the parties were given a fair opportunity to present their case – Oviasu v. Oviasu (1973) 11 S.C. 315 at 324 per Sowemimo, JSC and Nigerian-Arab Bank Ltd. v. Comex [1999] 6 NWLR (Pt. 608) 648 at 669 per Oguntade, JCA (as he then was).

In this regard, the respected learned author, Ese Malemi in his book The Nigerian Constitutional Law (1^st Ed., 2006, Princeton Publishing Co.) at 228 – 229 writes

“The requirements or elements of the right to fair hearing as provided in the Nigerian Constitution may be summarised as follows: …

23. Right to trial in public or in open court, as opposed to secret trial unless within the exceptions permitted by the Constitution. This is in order not to raise suspicions of injustice in the minds of the public. This is so because secrecy itself raises the presumption of impropriety and injustice.”

Ese Malemi recognizes that the constitutional mandate for public hearings was not drafted in absolute terms, as there are constitutional exceptions contained in the provisos to Section 36(4) which provide that in situations necessitated by the interest of defence, public safety, public order, public morality, the welfare of minors, the privacy of the disputants, or the interest of justice; the public may be excluded from the Court’s proceedings. This lends credence to the fact that the central theme of the policy of public trials is simply openness and not the use of a physical structure.

From the points above, it is manifest that Nigeria has developed greatly. In the words of Lord Denning, if the law remains the same, it would be bad for the law and bad for Nigeria. In A.G. Bendel, Idigbe, JSC provided the remedy. While the phrase “in public” has not changed, in the changing circumstances of a progressive Nigeria, the phrase must be allowed to yield a new and fuller meaning. This new and fuller meaning naturally incorporates virtual hearings which gives room for a wider range of people to participate in the Court’s proceedings.

The Obstacle Question

The very respected silk, Chief Adegboyega Awomolo, SAN in his paper referenced above writes that “one common feature of ‘public place’ for the purposes of conducting legal proceedings is that, same is an open place which is accessible to everyone without hindrance”. However, by this metric, every single trial that has ever conducted in Nigeria, and all decisions arising therefrom are nullities. This is because no courtroom anywhere in Nigeria has sufficient facilities to accommodate all 195 million Nigerians “without hindrance”.

I submit that inherent in the practicalities of justice administration has always been the acknowledgement that the constitutional mandate that trials be held “in public” has never referred to ‘everybody, at the same time, without hindrance’. In Jennings v. Stephen [1936] 1 All ER 409 at 412, 414 Lord Wright MR opined as follows:

“The question, in my opinion, must involve both law and fact, law in the sense that the true meaning of the words ‘in public’ must be ascertained as matter of law … ‘The public’ is a term of uncertain import; it must be limited in every case by the context in which it is used. It does not generally mean the inhabitants of the world or even the inhabitants of this country. In any specific context it may mean for practical purposes only the inhabitants of a village or such members of the community as particular advertisements would reach, or who would be interested in any particular matter, professional, political, social, artistic, or local … Thus it is clear that ‘public’ is meant, in the words of Bowen, L.J., (as) ‘a portion of the public’. The particular portion of the public which is meant may sometimes be very small indeed … It may be observed that in this country, actions or other cases are in general tried in public, and the court is public, though the number of the public present at any hearing may not be more than half a dozen.”

Applying the wise words of Lord Wright in Jennings v. Stephen, the reference to “in public” in Section 36 of the Constitution cannot be construed to mean all of the inhabitants of the Federal Republic of Nigeria without hindrance. In the context of the administration of justice, it must be limited to a portion of the public i.e. persons who are interested in the court’s proceedings and who the available facilities are able to accommodate.

Thus, in Joshua v. State [2000] 5 NWLR (Pt. 658) 591 at 618 – 619, I. T. Muhammad, JCA (now CJN) adopted the decision in R v. Denbigh JJ; ex. p. Williams and Evans [1974] 2 All ER 1052 and held

“It was Lord Widgery, C.J who stated among other things ‘…do your best to enable the public to come and see what is happening having a proper common sense regard for facilities available and the facility for keeping order , security and the like … the public are entitled to be admitted, and the trial is to be public in all respects … with due regard to the size of the court room, the conveniences of the court, the right to exclude objectionable characters and youth of tender ears, and to do other things which may facilitate the proper conduct of the trial”

Thus, even in a courtroom trial, which is limited by the availability of facilities, the test for determining publicity has never been ‘everybody, at the same time, without hindrance’, for the law does not command the impossible. As acknowledged by Lord Wright in Jennings v. Stephen, in courtroom hearings, “the number of the public present at any hearing may not be more than half a dozen”.

Another argument against virtual hearings satisfying the constitutional requirement of “in public” centers around the limitations created by the saturation of smart phones and access to the internet in Nigeria. It is argued that since only a portion of the populace have access to smart phones and the internet, virtual hearings will not be sufficiently public.

However, this argument balks against the realities of courtroom hearings. For example, a casual bystander resident in Kaduna State who happens to have an interest in proceedings taking place is Lagos State is bound to face obstacles in attending such proceedings. He would have to transport himself to and from Lagos State; find accommodation for the period of his visit; find a way to get to the relevant court; and hope that there are seats available in Court when he arrives to observe in the proceedings of the day. For some, these obstacles would be surmountable. However, in the poverty capital of the world, many persons would be unable to undertake the cost and effort required to attend such proceedings.

Despite these realities, there is no contest about the constitutionality of courtroom trials. By the same token, the obstacles of cost or access to the relevant device, which is inherent in the deployment of virtual hearings, are weak arguments against the publicity of such proceedings. In Russell v. Thompson [1953] N. I. 51 C.A. at 59 Lord MacDermott LCJ held

“There is nothing incongruous or exceptional about referring to buses, trains, museums, and picture galleries, for example, as being accessible to the public despite a charge of admission…”

In the same way, the fact that a bystander would need to spend money to purchase a smart phone and internet access to be able to participate in virtual hearings does not militate against the publicity of such hearing. By its very nature, information of any sort transmitted over the internet is usually open and accessible to all. In fact, it is not hyperbole to say that in today’s world, virtual hearings would be accessible to wider range of people, both locally and internationally, than a courtroom trial can ever attempt to be. It is thus paradoxical to insist that a multi-person virtual hearing is not sufficiently “in public” to be constitutional.

It has also been argued that the decisions of the Supreme Court in Oviasu v. Oviasu (1973) 11 S.C. 315; Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251; and Edibo v. State [2007] 13 NWLR (Pt. 1051) 306 are authorities for the proposition that virtual hearings are unconstitutional. However, in none of these cases was the deployment of virtual hearing directly in issue. These cases turned entirely on the conduct of proceedings in the private chambers of a Judge.

In Oviasu v. Oviasu (1973) 11 S.C. 315 at 323, Sowemimo, JSC held

“The hearing of this matrimonial case took place in the Judge’s chambers. Neither the Counsel nor the parties requested for the hearing of the divorce proceedings ‘in camera’. A judge’s chamber is not a court hall to which the public will normally have any right of access.”

In Nuhu v. Ogele [2003] 18 NWLR (Pt. 852) 251 at 273, Pats-Acholonu, JSC held

“It cannot be doubted that in a democratic setting where the Rule of law prevails id est, where all people, organs and institutions of the government are under the law, it is the indisputable right of the public to have undeniable and unlimited access to court proceedings. Courts exist for the citizenry. They adjudicate on the right of the parties and the method of adjudication can only be adjudged right and in keeping with the dictate of the primary law if the proceedings are open for all to see.”

In Edibo v. State [2007] 13 NWLR (Pt. 1051) 306 at 334 – 335, Ogbuagu, JSC held

“If one may ask, can the chambers of a Judge, be described as an ‘open place’ which is accessible to all and sundry? I think not … I hold firmly that a Judge’s Chambers, cannot and will never be, a public place or an ‘open’ and unrestricted place.”

Reading the ratios of the decisions cited above, it becomes clear that the Supreme Court came to the conclusion that proceedings therein considered were nullities because a Judge’s chamber is not “an open place” to which a person usually has a “right of access”. Thus, the test of sufficient publicity is not centered on the medium of the proceedings but rather the openness and access to the proceedings!

I submit that in determining the constitutionality of virtual hearings, the question is not whether virtual hearings are the same as courtroom trials. The question is simply: is a virtual hearing open and accessible? Assuredly, a multi-person virtual hearing, which is broadcast over the open internet, is accessible!

Confronted with the changing tides of human development (both organic and compelled), judiciaries all over world have turned to virtual hearings to guarantee the steady dispensation of justice. I submit that our Constitution accommodates this development and we cannot be weary of change! In Arconti v. Smith [2020] ONSC 2782 at Para. 19 Myers J. succinctly captured the tide of progress in the following words:

“In my view, the simplest answer to this issue is, “it’s 2020’ … We now have the technological ability to communicate remotely effectively. Using it is more efficient and far less costly than personal attendance. We should not be going back.”

The Validity of the Practice Directions

As stated above, various States of the Federation (and some specialized Courts) have either adopted or are in the process of adopting virtual hearings as means to tackle the exigencies occasioned by the COVID-19 pandemic. In this regard, various heads of courts have issued practice directions to regulate these virtual hearings.

The argument against the validity of these practice directions has been that virtual hearings are unconstitutional and as such, practice directions which sanction such hearings are ultra vires the Constitution and thus void. I have sufficiently addressed the question of the constitutionality of virtual hearings above, but the unique nature of practice directions gives more vigour to the argument in support of virtual hearings.

The power of the various heads of court to issue practice directions is provided for in Sections 236, 248, 254, 254F, 259, 264, 269, 279 and 284 of the Constitution. The Constitution enables the relevant head of court to makes “rules regulating the practice and procedure” of the relevant Court. In S.E.C. v. Okeke [2018] 12 NWLR (Pt. 1634) 462 at 480, Eko, JSC held that rules of court (and by implication, practice directions) “are statutory instruments deriving their legitimacy and efficacy directly from the Constitution”.

In this regard, Section 36(3) and (4) of the Constitution mandates that court proceedings are to take place “in public”; and as gleaned from Oviasu v. Oviasu; Nuhu v. Ogele and Edibo v. State, this means in a place that is open and accessible to the public. Thus, the Constitution donates a substantive right to citizens to have an open and accessible hearing as an integral part of the right to fair hearing.

But the Constitution is silent on the how! While the Constitution is emphatic that Court proceedings must be open and accessible, the Constitution does not provide for the benchmark of what would be deemed as sufficiently open and accessible. In this regard, it must be stressed that the Court (i.e. the institution) is different from the courtroom (i.e. the venue) and the Constitution does not mandate that a hearing must take place in a particular venue.

A fortiori, while the substantive right is constitutionally donated, the Constitution is silent as to the procedure for attaining and guaranteeing this right. This is where the power of the relevant head of court to enact rules and issue practice directions becomes indispensable. In Akanbi v. Alao [1989] 3 NWLR (Pt. 108) 118 at 136 – 137, Craig, JSC held as follows:

“It must be appreciated that these Rules are the lubricants of the machinery of justice and they contain minute details of the various steps which a litigant is expected to take in the process of getting the Court to hear and adjudicate on the different types of cases which come before it. Furthermore, these Rules are subject to amendment from time to time; and they vary from one tier of Court to another. It is obvious therefore that the power to make those rules has to be delegated if the Constitution is not to be rendered unduly cumbersome. In those circumstances, the legal effect is that once it is shown that the Rules are made under the powers conferred by the Constitution, they would have the same force of law as the Constitution itself.”

Applying the decision in Akanbi v. Alao, the practice directions issued by the heads of court detail the procedure to be adopted by the Court and litigants in the exercise of the rights conferred by the Constitution. In the context of Section 36(3) and (4), the Constitution simply stipulates ‘what’ the right is but did not encumbered itself with details as to ‘how’ this right is to be upheld, exercised and accomplished.

The Constitution delegates the power to prescribe the ‘how’ to the relevant head of court, and when heads of court exercise this power and issue a practice directions, such enactments share in the nature of the Constitution itself by giving necessary detail to the constitutional rights.

Thus, while Section 36 provides for open and accessible adjudication, the practice directions have now prescribed how such open and accessible proceedings are to be conducted. Such directions would only be ultra vires the Constitution if they are not indeed open and accessible. However, as shown above, the multi-person virtual hearings which are broadcast over the internet are surely open and accessible.

It is accordingly submitted that the various practice direction are competent as they are within the scheme of the policy underpinning the Section 36(3) and (4) right to open and accessible justice.

Conclusion

When questions arose as the constitutionality of virtual hearings, the solution touted by many was an alteration of the Constitution. This is because it is now common place that every manifestation of the National Assembly sets up a constitution amendment committee to tinker with the provisions of the Constitution. Since 1999, we have altered the Constitution so many times that it now feels like an ordinary Act of the National Assembly.

We have given non-essential issues constitutional status, making the Constitution an unwieldy document. However, the Constitution is a sacred document which should only be altered in exceptional circumstances. As a living document, through the process of construction, it is within the jurisdictional purview of the Courts to advance and adapt the words of the Constitution.

With regards to the debate as regards the constitutionality of virtual hearings, it is submitted that “in public” can be construed to include virtual hearings, as such hearings are open and accessible and thus fulfill the requirements of Section 36(3) and (4) of the Constitution. In summary, virtual hearings are constitutional.

Chukwuebuka S. Okeke, Esq., Counsel at O.A. Omonuwa (SAN) & Co.

[email protected]; [email protected]

08083310946, 08074453871

[i] Google definition which was adapted from Oxford Languages (Online) [accessed 22/05/2020]

[ii] Merriam-Webster Dictionary (Online) [accessed 22/05/2020]

[iii] Collins Dictionary (Online) [accessed 22/05/2020]

[iv] Macmillan Dictionary (Online) [accessed 22/05/2020]