The
COVID 19 pandemic has led to the shutdown of many offices/businesses and
lock down of many cities across the world. Nigeria is not left out of the
shut down/lockdown and as a result, the courts in Nigeria are rendering skeletal
services and only attending to matters that are time bound, essential or urgent
pursuant to the directive of the National Judicial Council.
In
Australia, the Supreme Court of New South Wales stated that it would take steps
to minimize the need for parties to come to the Court through the use of online
courts and telephone and video conferencing. Also in Australia, the Chief
Justice of the State of Victoria announced that all new jury trials will be suspended, and the Federal Court of Australia announced that it will limit
face-to-face hearings to essential matters only.
On 23rd
March, 2020 the North Dakota Supreme Court heard three oral arguments using an
online meeting application permitting seamless audio and video participation.
Three
cases were discussed allowing the justices and attorneys, each physically in
different locations, to appear together on the same computer screen and conduct
business. The cases were broadcast live on the Internet. The lawyers presented
their cases and the Justices questioned counsel, all in real-time and just as
if the session was occurring live in the courtroom.
After
the oral arguments, the Court met using another secure videoconferencing
application to discuss the cases among themselves. The Court’s decision will
be written by one of the Justices and released in the future.
In
Kenya it was reported that Justice Hannah Okwengu of the Court of Appeal will
deliver over 20 judgments and rulings of appeals and applications heard in
Nairobi, Kisumu, Mombasa and Eldoret through video link and transmit others by
email on Friday 3rd April, 2020. It was also reported that seven cases
certified as urgent will be argued sometimes in April, 2020 through written
submissions digitally transmitted to the Court. The decisions will likewise be
so transmitted to parties/counsel.
The
question that flows therefrom is whether the Nigerian courts can take advantage
of the existing ICT tools or infrastructure; for example, video conferencing,
email, SMS, etc., to enhance service delivery namely; hearing of cases, in this
times of lockdown and even thereafter?
Considering
the lack of stable electricity supply and lack of technology competence on the
part of some judicial staff and lawyers alike, it would be doubly difficult
leveraging on ICT to drive service delivery by the Nigerian courts.
Nevertheless, the Nigerian Judiciary must start from somewhere. The Judiciary
cannot afford to wait till all conditions are perfect before starting.
As
far back as 2012, the then Chief Justice of the Nigeria,
Justice Dahiru Musdapher, launched the Nigerian Judiciary Information Technology Policy (JITPO) at the National Judicial Council Complex in Abuja. He stated that that
implementing the policy will assist the judiciary to meet the changing needs of
the nation’s judicial officers, court employers, key stakeholders and the
general public as according to him the policy will provide the needed foundation
for the implementation of any Information Technology (IT) project in the
judiciary.
Justice Musdapher
charged the Nigerian Judiciary to embrace IT as a means of improving access to
courts and increase transparency of the court process by providing information
about court cases, court procedures, facilities and most importantly expedite
the judicial process.
The Judicial Information
Technology Policy (JITPO) has not only endorsed the use of Video Conferencing,
but has clearly laid down guidelines for its application to the Nigerian
Courts. It provides as follows:
“The use of video-conferencing technology is greatly
encouraged in the Judiciary. Video-conferencing can be used to connect people
in different physical locations especially for critical meetings and
discussions. Video conferencing systems can also be used to enable testifying
witnesses appear in court without having to travel to the courtroom. Expert
witnesses, prisoners, and various other witnesses can provide the same
testimonies from remote locations. From the prison, prisoners will see and hear
everything that takes place in the courtroom and will be able to answer
questions posed to them by the judges and lawyers…Videoconferencing in the
court system offers significant cost savings and improved security by reducing
the need for high-security prisoner transport. The entire courtroom experience
will be made shorter, safer and more cost-effective.”
Thus in 2016, in the case of FLORENCE
ORIM vs. EDWARD ORIM, a Benue State High Court, sitting in Makurdi, took the testimony of a witness who was in
Japan via Skype.
As can be seen from the
JITPO document, the Judiciary in Nigeria is acutely aware of the benefits of
using technology to enhance and improve service delivery and access to justice.
The JITPO policy document is about 8 years old now. The corona virus pandemic
should spur the current head of the Judiciary and other stakeholders into fully
putting into effect the laudable policies contained in the JITPO and if
necessary even amending the policy to bring it up to date with current
realities.
If the policy is fully
implemented and the rules of some courts are tweaked, there is no reason why
certain matters cannot be completely held online using ICT tools or
infrastructure. For example oral arguments in appeals at the Supreme Court and Court
of Appeal can be held virtually or online after briefs have been filed and
exchanged by parties. Briefs can even be filed and served electronically
obviating the need for parties to visit the court’s registry for filing
purposes.
Fundamental rights
enforcement cases which do not necessarily need the physical appearance of
parties and is usually dealt with by affidavit evidence and documents can be
held online. Parties can electronically file their papers and they would be
served electronically while adoption of written addresses and oral adumbration
can be done via video conferencing.
Although there exist
electronic filing system in the Lagos State Judiciary it is said to be fraught with
so much inefficiency that it has been reduced to scanning of paper documents.
According to Funmilayo Odude, who I totally agree with:
“A
more efficient technology-driven system would enable litigants and their
lawyers enter their information and state their cases by filling relevant forms
on the courts' website. The litigants would also be able to make payment of filing
fees and other incidental expenses online. The final document bearing the suit
number, stamp of the court and receipt for payment can, thereafter, be printed
by the litigant or his or her legal practitioner and reproduced in the number
of copies required. To further deepen the automation of court processes, the Legal
Practitioners Act and the Evidence Act would need to be amended to allow for electronic
stamps and electronic signatures, respectively. The process can, however, begin
with the legal community lobbying the National Assembly for these amendments.
In an automated environment, subsequent filing in a suit will be done online
and a copy of what is filed can be sent to the email addresses of all the
parties. The system of electronic filing described above is not impossible to
implement in the federal courts or high courts of states in Nigeria. The Corporate
Affairs Commission has successfully implemented an automated system.”
Many lawyers remain largely
incompetent, or at least untrained, in technology. I meet these lawyers all the
time — some who are proudly resistant to learning technology, others who simply
have not taken the time. Such lawyers must become computer literate in order
for them to function effectively and deliver their services in this changing
world of legal practice.
In the United States, following
a 2012 modification to the American Bar Association’s Model Rules of Professional Conduct, lawyers in America are required to stay abreast of
changes in the law and its practice, including the benefits and the risks
associated with relevant technology. The duty of competence of lawyers in the
United States includes both substantive knowledge of law and competent use of
the technology that lawyers use to practice law. Lawyers in America are
expected to take reasonable steps to understand how technology may affect their
legal representation.
Commenting on the 2012 modification
to the American Bar Association’s Model Rules of Professional Conduct, Andrew Perlman said:
“The
seemingly minor change to a Comment to Rule 1.1 of the American Bar
Association’s Model Rules of Professional Conduct captures an important shift
in thinking about competent twenty-first century lawyering. Technology is
playing an ever more important role, and lawyers who fail to keep abreast of
new developments face a heightened risk of discipline or malpractice as well as
formidable new challenges in an increasingly crowded and competitive legal
marketplace.”
Maybe it is time for the
Rules of Professional Conduct for Legal Practitioners in Nigeria to be amended
in that regard. Also the time has come for the Judiciary in Nigeria to upgrade
its use of ICT tools in service delivery as envisioned in the JITPO.
