In light of the ongoing global pandemic (Covid-19) ravaging almost all countries of the world, legal proceedings in Nigeria and other countries of the world have been stalled. The Kenyan judiciary took the lead in innovative justice delivery in Africawhen images of a Kenyan judge conducting court proceedings via an online platform surfaced. This approach has being maintained so far in the face of the pandemic. This innovative approach to justice delivery is to say the least revolutionary and worthy of commendation as it has opened a new vista in the realm of justice delivery.
This way, court proceedings are not put on hold indefinitely considering the effects of the coronavirus. In an interesting turn of events, reports surfaced that the Borno State Judiciary in Northern Nigeria, has conducted court proceedings, albeit criminal, via online medium. This is commendable. An interesting question however arises, to wit, whether or not the conducting of court proceedings via online platforms are legal in line with the provision of Section 36(3) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). The article would briefly attempt to answer this question and make relevant recommendations in light of recent happenings.
The Constitution provides for guidance in answering the question at hand. The 1999 Constitution provides that in the determination of a person’s 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 (Section 36(1) CFRN 1999). The Constitution further provides pursuant to Section 36(3) that “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.”
The above point has raised arguments amongst legal luminaries on the propriety or otherwise of proceedings conducted via various online media. On one hand it is crystal clear that in certain circumstances, criminal matters may be conducted with the exclusion from court proceedings persons other than the parties and their legal practitioners in the interest of defence, (as seen in the secret prosecution of Mr. Henry Okah, leader of MEND) public safety, public order et.c. (Section 36(4)(a), CFRN 1999). Flowing from the above, it is submitted that online criminal proceedings in the face of prevailing circumstances falls within the public health exception provided for under Section 36(4)(a) of the CFRN 1999.
However, the question of whether civil proceedings conducted online would be legally binding flows from the above. Without doubt, recourse to the provision of Section 36(4) CFRN 1999 would reveal that any civil proceedings held away from the eyes of the public is undoubtedly illegal and unconstitutional. Should the law therefore allow civil proceedings linger for as long as the prevailing circumstances stand, taking into account that quick dispensation of justice is one of the hallmarks of justice in the real sense of it? It is clear that since these proceedings cannot be conducted away from the public, they therefore have to remain stuck until the public would be able to access the courts. Some may argue that the courts may embrace an online platform that allows any interested person to partake as an online observer in the proceedings, thus, addressing the issue of court proceedings conducted in public. This argument is however cancelled out by the fact that a large percentage of interested members of the public who might not be able to afford internet facilities that would be necessary to be able to participate in such proceedings would in effect be disallowed from participating or having access to the proceedings. This is in effect against the spirit of the provisions of the Constitution.
In conclusion, the decision of the Borno State Judiciary to conduct online proceedings in criminal matters, is not only commendable but also constitutional taking into account the public health proviso in Section 36(4)(a) of the 1999 CFRN. Further, there is need for the Nigerian system (not only the judiciary) to be more socially conscious of the role and impact of technology in justice delivery and other relevant aspects of the economy and embrace rapid technological advancements in the world in order to be able to compete efficiently in the comity of nations. Thus, in respect of online court proceedings, there is a need for drafters of Nigerian legislations to embrace change in other for civil proceedings to be able to validly proceed in the face of current and future similar challenges.