Are Virtual Courts Criminal Convictions Unsafe?

By Raphael Christopher, Senior Lawyer

Freedom, equality and Justice. – These beautiful, elegant and noble words encapsulates the focus of The Constitution of The Federal Republic of Nigeria.

Welcome, chapter 1 (3) that states If any other law is inconsistent with the provisions of this Constitution, this Constitution shall prevail, and that other law shall, to the extent of the inconsistency, be void.

Along comes Covid, lockdown and the plethora of legislations purportedly made thereunder by the State Governments and Judicial bodies and one of those is the newly presented virtual courts bill now before The National Assembly.

I am pleased that some of my proposals on remote hearings; bundles and proceedings have been considered and included in the virtual courts hearings bill now before The National Assembly and the Federal High Court Rules on remote hearings directions and also included in many states own remote hearings rules such as The Lagos, Enugu, Ebonyi States High Court practice rules on remote hearings and also the NICN remote hearing rules.

However, there is an area everyone seems to have forgotten.

This area is the impact of Chapter 1, section 6. (1) of the Constitution of The Federal Republic of Nigeria, which states that In the determination of his 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.

And further:

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(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal:

We have a problem.

Is a hearing in a virtual court by its definition, without more, a fair hearing in public?

The answer must be no. It is not.

The root word and etymology of Public is varied. It has hybrid meanings and connotations. It is, at once, an adjective when it is used to describe the behaviour of people as a whole unit.

The word, public can also act as a noun where it refers to ordinary people in general as in ‘…the courts are open to the public…”

Several questions arises that impinges on this definition of public.

One, Are the virtual courts open to the public?

If they are not, how could it be said that they are public?

In the natural sense of the word, before COVID-19, when a court is sitting in any physical place, a member of the public has a constitutional right to enter the court and sit and watch the proceedings at no cost.

In a virtual court hearing, is that even possible?

The answer, currently would be no, when, you consider the following issues:

  1. Lack of electricity and power to power the computers and IT infrastructure needed to make the system work.
  2. When the mobile networks are bad and signals are unreliable.
  3. When majority of the population have no access to IT infrastructure.
  4. When the costs of data bundles for mobile phones are prohibitive.

These above problems are on the ground, but the constitution requires a fair hearing to take place in public, it can be argued that a virtual court hearing where members of the public find inaccessible for the reason propounded above, would not qualify as a fair hearing, held in public.

The above is also the case in civil hearings even though the consequences of the absence of the members of the public in those hearings are not as severe and far reaching on the liberty and welfare of its citizens as that which opens in a criminal trial, nevertheless, civil hearings must be held in public to be a fair hearing.

If that is the clear and incontrovertible result of this bills and practice directions, it naturally follows that any criminal convictions secured in a remote hearing or virtual hearings are unsafe and would be overturned on appeal.

Can this be prevented? Is this preventable? Yes. But what are the
likely solutions?

There are many but the list below is a useful starting point.

  1. Amend the virtual courts bill now before The National Assembly to provide that the members of public are free to attend the virtual courts hearings.
  2. Amend the virtual courts bill to provide for the efficient dissemination of access information to virtual courts, to the public using established judicial portals.
  3. Creating more venues for civil and criminal courts to sit where members of the public can be enabled to attend hearings subject to social distancing.
  4. Appointment of more magistrates and judges to tackle the huge workload.
  5. Provide proper and further Judicial training in use of IT
  6. Proper and better funding of the Judiciary by appointing more IT specialists to assist our Judiciary.
  7. Improvement of networks and data connections of the Judiciary and court users.

Implementing the above would be a good starting point, not an end, to the continuance of the overall improvement of our justice systems so that the tenets of our constitution on fair trials and hearing in public can become a reality and criminal convictions can be made safe, and this is, definitely, in the interests of Justice.

Raphael Christopher is a senior lawyer and member of Enugu Bar.

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