Thisday Newspaper reported in its May 17, 2020 edition that some Judges who granted interviews to their correspondent on grounds of anonymity are of the view that virtual sittings are unconstitutional and proceedings emanating from same would fall on their backs if tested on appeal with Jurisdiction as the main question arising.
They opined that ” there are constitutional hurdles to cross before Nigeria can adopt a system of remote hearing of cases”. It was cheap prophesy that many questions of Jurisdiction would arise and same would be a natural off shoot of the Orji Kalu Judgement by the Apex court – what was not contemplated was it’s biting this soon and obviously standing averse to growth.
It is fundamentally troubling that my Lords are of the opinion that virtual proceedings are a contravention of the constitution – It has become a topic worthy of discussion especially that it is the duty of the court to interprete the Laws and the mind of the court strictly speaking is the mind of a man – to wit, My Lords.
The constitution states in Section 36 that court proceedings should be conducted in Public.
The direct wordings are;
“36. (1) 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.
(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(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.
There is no gain saying that a contravention of this provision raises the duo of Jurisdiction and fair hearing as main issues to be considered. What remains to be distilled is the contemplation of the framers of the constitution when it stated that proceedings shall be held in Public.
The Interpretation Section is silent on what amounts to “Public” – however – the Cambridge English Dictionary defines “Public” as relating to or involving people in general, rather than being limited to a particular group of people.
Deducible from the aforesaid is that Proceedings that people are allowed unlimited access to would be said to have been conveniently held in Public. If our system admits that statements made on social media are made to ” the Public”, it is natural that Proceedings made available on the media without restrictions are made in Public.
It behoves on my Lords therefore to explain how Virtual Hearings which over 20 million Nigerians can have access to by simply joining in on the link from the comfort of their homes, offices and all locations beyond even the Jurisdiction of the court (as apply) are not “Public” but proceedings held in a court room where not more than 100 people can fit in are “Public”.
Of course, the proposed amendment of the constitution by the Senate puts to task the never busy Senate to earn their wages but this poses no harm in my honest opinion and raises no concerns of Jurisdiction and fair hearing.
The global universe is advancing and our Jurisprudence must advance with it. Conforming strictly to slavish interpretations of our constitution would hold us back from growth. The Constitution I imagine was not set to frustrate the evolution of our Legal system and my Lords must sincerely loosen up.
Kamo Sende Esq. is a Kano based legal practitioner and a rights activist.