/Time for our Courts to embrace the New Normal, By Simbo Olorunfemi
Time for our Courts to embrace the New Normal, By Simbo Olorunfemi

Time for our Courts to embrace the New Normal, By Simbo Olorunfemi

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A new normal is upon us, irrespective of our feelings, expectation or preparedness. The European Football season had to find a way around the reality we are faced with. Formula1 is back, not as it used to be back, but the race is back on. People are throwing out the box to embrace solutions in the face of this new normal.

How long would things stay this way? Would things return to the old normal? No-one can tell for sure. But what is certain is that there are some things that have come to be that will never return to the way they used to be? This new normal has forced our hands in some respect and we must either find a way to live with it or around it.

One good thing is that the pandemic has not only brought us grief, it has also stretched us in directions we might not have thought possible. It has also led us to some gains in unexpected quarters. For instance, Nigeria now has over 50 laboratories in the NCDC Molecular laboratory network, up from the few that were in place before COVID-19. That is a leap forward in the level of our health infrastructure and an improvement in our capacity to respond to public health emergencies and even private ones.

Two weeks ago, the Supreme Court struck out suits by the Lagos and Ekiti Governments on the validity and constitutionality of the Virtual Court Sittings as had been sanctioned via practice direction by some State Chief Judges and as directed by the Minister of Justice and the Attorney General of the Federation.

If one was to only follow the newspaper headlines, one would exclaim that it was a landmark ruling by the Supreme Court, as many newspapers, including Guardian, reported thus: “Supreme Court okays virtual hearings of cases.”

Lawyers generally feast on technicalities. It is what it is. But for the sake of justice which ought to be the first consideration for everyone, should this virtual/remote sitting not be one we should gladly embrace?

But the reports out there leaves one confused, especially as the accounts could not agree on the grounds upon which the State Governments filed their action.  Guardian says Lagos State’s suit had challenged the power of the National Assembly to amend section 274 of the Constitution which seeks to include virtual proceedings in the constitution while Ekiti State had “urged the court to make an affirmative decision to remove the speculations and uncertainties being entertained about the virtual hearing by judges.”

Yet another account had it that the Lagos State government, in its suit, “had prayed the Supreme Court to determine whether having regard to Section 36(1), (3) and (4) of the 1999 Constitution (as amended) use of technology by remote hearings of any kind, whether by Zoom, Microsoft Teams, WhatsApp, Skype or any other audio visual or video-conference platform by the Lagos State High Court or any other Courts in Nigeria in aid of hearing and determination of cases are constitutional.”

Surprising as it is,  Ekiti was said to have “challenged the constitutionality of the directive of the Minister of Justice and the Attorney General of the Federation (AGF), Abubakar Malami (SAN) to the Head of Courts at federal and state levels to adopt Virtual Court Sittings in courts, asking the Supreme Court to issue an order to annul the directive for the adoption of the Virtual or Remote Court sittings for being inconsistent with Section 1(3), 4(6), 5(2), 6(2), 36(3) and (4), 272 and 274 of the 1999 Constitution.”

Ekiti State was said to have asked the Supreme Court to determine whether the AGF’s guidelines are not a derogation from the legislative, executive and judicial law-making, law execution and adjudicatory rules making powers exclusively vested in states of the federation in respect of states courts, by virtue of Sections 1(3), 4(6), 5(2), 6(2), 272 and 272 and 274 of the Constitution.

It would be surprising, if as reported here, Ekiti had indeed challenged the directive in favour of remote hearing of cases.

But whatever the grounds were, one account has it that the 7-man panel led by Justice Bode Rhodes-Vivour struck out the suits, following their withdrawal by the plaintiffs,  while another says that the suits were withdrawn after members of the panel described the suits as academic and speculative, as the suits did not disclose how virtual proceedings had injured the interest or right of anyone.

Difficult as it is to make sense of what actually transpired, it does appear that indeed, the merits of the case were not really up for consideration. Yet, one account has it that Justice Rhodes-Vivour ruled that “as of today, virtual sitting is not unconstitutional.”

We cannot continue to wait, hoping that things would simply return to the way they were. The new normal has come with some opportunities that we must be wise to embrace.

So, it does appear that the uncertainty that surrounds remote hearing of cases in Nigeria is still there. Needlessly so. That should not be the case. There should be a way to clear that up without waiting for a case to be used as guinea-pig.  If it truly does require a constitutional amendment, it is strange that any state government will challenge that.

If there is some gain that we should be able to point at on account of COVID-19, it should be the incorporation of Virtual or Remote Court sitting. It is unbelievable how much harm has been done to the course of justice by the long delay in handling cases, often on account of repeated adjournments on mostly flimsy grounds. Just before COVID,  I had travelled, at a huge expense, to be in court at another part of the country for a 2-day dedicated hearing of an 8 year old matter. We lost the first day to nothing and just as the second was to climax, matter gets adjourned without my testimony because the Judge was travelling out of town, coincidentally same direction with me. COVID-19 has since caught up with the new date of hearing. How can we not have witnesses, especially those out of town participate remotely?

Lawyers generally feast on technicalities. It is what it is. But for the sake of justice which ought to be the first consideration for everyone, should this virtual/remote sitting not be one we should gladly embrace? The last time I raised this here, a lawyer was all about how that negates the openness expected of a court sitting. Can we not simply put up the cause list online and indicate the links for whoever wishes to join in?

We have many cases of those in custody awaiting trial. Sometimes, we are told, the challenge of expeditiously moving them to court for their cases to be heard is what has kept many behind bars for years. Can the State Judiciary not employ this remote hearing model to take on this absurdity of keeping people behind bars for years, awaiting trial?

I have a friend in England who is a prosecutor. As at few weeks ago, I spoke with him, he was still largely working from home, even prosecuting cases from home. And that had been the case since April, he said.

We need that even more than there. With the front-loading system in place, a lot is ordinarily taken off with people adopting written statements. There is a lot to take advantage of, from remote sittings , that we should immediately adopt, even as we know not all cases would easily fit in. I think it would even serve our Lawyers well, better than what we presently witness.

We cannot continue to wait, hoping that things would simply return to the way they were. The new normal has come with some opportunities that we must be wise to embrace.