Are Virtual Court Hearings Really Unconstitutional?
Introduction
This article is both an exposition on the constitutionality of virtual court hearings in Nigeria and a rejoinder to a piece, titled “Judges Oppose Virtual Court Sitting, Says it’s Unconstitutional,” published by THISDAY Newspaper on 17 May 2020 (“the ThisDay article”).
The ThisDay article had anonymously reported the views of some judges that the Nigerian Constitution, as it presently is, does not recognise virtual court hearings. Their reasoning was that section 36 of the Constitution requires court proceedings, including delivery of court decisions, to be held in public but that virtual court hearing is not public hearing. Hence, the judges went on, there is every possibility that any virtual court hearings held under the present constitutional framework would on appeal be nullified by the Supreme Court for not meeting the constitutional requirement of public hearing. The ThisDay article then concluded that “The authorities support the view that virtual hearing of cases may not pass the constitutional test of public hearing” and also noted that hope exists as the Nigerian Senate had introduced a bill “legalizing” virtual court hearing in Nigeria.
Our view is that whilst a constitutional amendment expressly recognizing virtual court hearings is desirable, virtual court hearings are not in themselves contrary to the public hearing requirement of the constitution and so are not unconstitutional or “illegal” even under the present constitutional provisions.
The proper interpretative approach to the Constitution
The debate on whether virtual court hearings are permitted by the Constitution emanates from Section 36(3) and 36(4) of the Constitution which provide thus:
(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(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:”
These provisions undoubtedly require court hearings to be held in public. In other words, court hearings must be public hearings. The questions which then arise are: (a) what amounts to a public hearing, and (b) does a virtual court hearing qualify as a public hearing?
In answering these questions, the unnamed judges in the ThisDay article adopted a narrow interpretative approach by restricting the meaning of “public hearing” to a physical courtroom or location. But given the nature of the Constitution as an organic document, the prevailing interpretative approach to the constitution is the liberal or expansive approach. Even as recently as 2017, the Supreme Court restated this approach in the celebrated case of Skye Bank v Victor Iwu (2017) 16 NWLR Pt. 1590 at pg. 24 as follows:
There is the very fundamental prescription that, in interpreting the Constitution – which is the supreme law of the land – mere technical rules of interpretation of statutes are, to some extent, inadmissible in a way so as to defeat the principles of government enshrined therein…
Where the question is whether the Constitution has used an expression in the wider or in the narrower sense… 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 purpose of the Constitution.
Similarly, as Udo Udoma J.S.C. in Nafiu Rabiu v The State [1982]2 NCLR 293 noted, the Constitution was enacted for the current generation and generations unborn. Therefore, it must be interpreted as broadly as justice requires or within the realities of its time, unless the narrower interpretation will best serve the purposes of the law.
The above decision clearly portrays the approach courts should adopt when interpreting provisions of the Constitution. The challenge to the constitutionality of virtual court hearings is premised on defining “public” hearing as used in Section 36 of the Constitution restrictively to a physical courtroom or location. But this interpretation is a narrow and restrictive interpretation not supported by relevant judicial decisions on the point.
Relevant Judicial Decisions on “Public hearing”
As earlier noted, the law is settled that proceedings before law courts in Nigeria should, as a general rule, be held in public.
The decision of the Supreme Court in Mohammed v Nwobodo (2001) LPELR-1859(SC) is relevant in defining what public hearing means. In that case, the Supreme Court held that:
A Judge’s Chambers is not a court hall to which the public will normally have any right of access… It is of the essence of justice that it should not only be done but that it should be seen to be actually done. Any act of secrecy, however desirable it might seem, detract from the aura of impartiality, independence, publicity and unqualified respect which enshrouds justice given without fear or favour…
Besides underscoring the importance of public hearings, the decision points out that public hearing means the public should have right of access to the hearing.
Again, the Supreme Court, considering whether hearing an application in chambers satisfied the constitutional requirement of public hearing, held in Oba Jacob Oyedipo & Anor v Chief J.O. Oyinloye (1987) 1 NWLR (Pt. 50) 36 (SC) as follows:
When the Court sits in Chambers, all that it means is that the judges of the court are transacting business of the court in Chambers instead of in open court (see Hartmont v Foster (1881) 8 QBD 82, 84). It does not mean that the Court is not sitting in public. A Court can sit in open court and yet decide to exclude members of the public other than the parties or their legal representatives from the hearing in exercise of its statutory powers. A judge may sit in Chambers without excluding members of the public. It is therefore not unconstitutional to sit in Chambers.
It becomes clear from these decisions that the test for determining whether a hearing is a public hearing is not whether the hearing was held in an open physical court room or location but whether the public can access the hearing and are not excluded from it.
Do virtual court hearings qualify as public hearings?
Our view is that virtual court hearings qualify as public hearings within the constitutional provisions.
In the first place, virtual hearing platforms afford the public access to court proceedings and do not intrinsically exclude the public from the proceedings. In fact, virtually proceedings are able to accommodate more persons than most of the regular court rooms in Nigeria. Platforms like ZoomandGotomeet can accommodate up to a thousand participants whilst a live stream potentially provides access to the entire world. Consequently, virtual proceedings would satisfy the requirement of public hearing where the details of the virtual proceedings are published (via an online cause list for example) such that any member of the public can log in and observe the proceedings online.
The Practice Directions issued by Heads of Court to test the waters of virtual court hearings in Nigeria requires the courts to release a link or channel through which members of the public and the press are to access and observe the hearings. The constitutional requirement of public hearing is thus satisfied. Hence, just as a hearing in a physical location (e.g. an open court or a judges’ chamber) does not thereby render the proceedings automatically unconstitutional, a hearing held through a virtual platform does not automatically render the proceeding unconstitutional too. The Constitution did not state that hearing can only be conducted in a physical location where judges, parties and their counsel are all gathered. What is important is whether the public are allowed or denied access to such proceedings.
Public access to proceedings is more evident with virtual proceedings than with regular court sitting. For instance, on Monday, 4 May 2020, the High Court of Lagos per Hon. Justice Mojisola Dada delivered judgment in a criminal matter via Zoom Video Conference which was watched live by over 100 persons including non-lawyers. Held in a regular court room, the proceeding would not have had as much audience.
Even where there is a quantitative limit to the number of persons that can participate in a virtual hearing such as where the platform can accommodate only 500 or 1000 participants, the principle of “first come, first served” which is applied to sittings in a physical courtroom can be adopted, the exception being for parties and their counsel who should have secure login links different from the link other members of the public would access the hearing with so that their attendance slots in the virtual hearings would be constantly guaranteed.
The Assumed Complexities of Virtual Court Hearings
There is the misconception that virtual court hearing requires the use of very highly sophisticated technology which is not readily available to legal practitioners and members of the public. But the reality is that virtual hearings do not require the use of any special technology. All that a participant needs are a smartphone with camera and internet connection.
The ThisDay article had argued that “Many Nigerians do not have access to smartphones and data…” and this will prove a constitutional challenge of access to justice. This submission is flawed: it is unsupported by statistics and also beside the point. It is analogous to arguing that Nigerians are denied access to hearings because “many do not have the finance to transport themselves to court to observe proceedings.”
Further, the Rules of Court of almost every court in Nigeria provides that all processes to be filed before that Court are to be typed on a computer and printed with a printer. These provisions appeared in the rules of court as far back as the late Twentieth Century when many Nigerians did not have access to a computer or even a typewriter. But this logistical challenge did not clog the wheel of justice or lead to the denial of hearing rights.
If at all, a reliance on video technology for virtual hearings will lead to an increased development and adoption of technology in Nigeria. On a related note, a participant in virtual court proceedings need not own the apparatus through which they aim to dial into hearings – just as people need not own the cars by which they transport themselves to court or the printers by which they or their counsel print court documents.
Conclusion
Nigerian courts are already inundated with a backlog of unheard cases as well as a pandemic which threatens to cripple every facet of our national life.
The Supreme Court in Brigadier General James Abdullahi v Nigerian Army & Ors (2018) LPELR 45202 (SC) adopted the popular dictum of the Lord Denning in Parker v Parker (1954) 15 All ER at 22 that:
What is the argument on the other side? Only that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still while the rest of the world goes on, and that will be bad for both. “
Our judicial system cannot remain in standstill while the rest of the world adapt to present realities. Virtual court hearings are constitutional and their adoption in Nigeria is long overdue.
With an action having reportedly been filed at the Supreme Court by the Attorneys-General of South-Western States in this regard, a decision on the point is imminent; hopefully it is one which aligns with the above position.
Abdullateef Olasubomi Abdul is a legal practitioner based in Lagos (Nigeria) with interests in dispute resolution, taxation, law of commercial transactions, and corporate and investment law. He enjoys writing and sports, and can be reached at abdullateef.abdul999@gmail.com.
Nonso Anyasi is a legal practitioner based in Lagos, Nigeria with interests in Cybersecurity, Data Privacy, and Constitutional Law. He can be reached at nonsoanyasi@gmail.com.
Oluyemi Adebo is a legal practitioner based in Lagos, Nigeria, with keen interests in Commercial Dispute Resolution and Tax Law. He enjoys writing as well as playing the piano, drums and football. He can be reached at oluyemiadebo@yahoo.com.
