By Mustapha Ogunsakin
Can a court sentence a defendant to prison or death through virtual proceedings? This is the issue that the Lagos State Government has tendered before the Nigerian Supreme Court to determine.
In a suit filed before the Apex Court by that Attorney General of Lagos State, Moyosore Onigbanjo SAN, Lagos constitutionality and justiciability of Virtual Court Proceedings.
Joined as defendants in the suit is the Attorney General of the Federation, Abubakar Malami SAN, and the National Assembly.
Prior to this suit, lawyers had argued on the propriety of sentencing a defendant on video,Zoom, or any order Internet related social media application. This was particularly so after an Ikeja High Court judge, Justice Mojisola Dada, on May 4, 2020 sentenced a defendant, Olalekan Hameed to death by hanging for murder during the lockdown. The case was regarded as a test case on virtual court proceedings.
Many lawyers believed it was not constitutional. Former Chairman, National Human Rights Commission (NHRC), Prof Chick Odinkalu said find the idea queer.
He said: “I find something truly unsettling about sentencing a person to death by Zoom. I am sure even the owners or makers of the Zoom app did not think of that possibility when they designed it. In my view, it is inhumane to pronounce capital punishment by Zoom. This point is not about whether you support or oppose capital punishment. Even people who support capital punishment enthusiastically may struggle to come to terms with the idea that it can be pronounced by Zoom. What is next: maybe we execute people by zapping them at the press of a button?! My hope is that this issue will receive higher judicial attention”.
Also, Lagos lawyer and human rights activist, Jiti Ogunye believes that the constitution does not allow a sentence by Zoom, or any other social media application.
He said: There is a provision in the constitution and in the High Court laws that states that judgments, rulings and orders must be delivered or made in open court or in Chambers, not via Skype, Zoom or other virtual delivery processes so I imagine that the defense counsel in that case can exploit that loophole”.
Moreover, the Chairman Senate Committee on Judiciary and Human Rights, Senator Opeyemi Bamidele introduced a bill before the Senate that will make laws for the provision for virtual proceedings in court proceedings.
In the suit filed before the Supreme Court, Lagos is asking the apex 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”.
The Plaintiff also wants the Supreme Court to determine “whether in view of the powers conferred on the Chief Judge of a State under Section 274 of the Constitution, and in particular, the Chief Judge of Lagos State having exercised such power to regulate the practice and procedure of the High Court of Lagos State through the issuance of Practice Directions for Virtual Hearings dated 4th and 15th May 2020, the National Assembly, can usurp the powers of the Chief Judge of Lagos State under Section 274 of the Constitution by commencing the process for the amendment of Section 36(3) and (4) of the Constitution to include virtual or remote hearings?”
The state is further “seeking a declaration that the extant provisions in the Constitution, especially Sections 36 (3) and (4) are adequate to accommodate virtual or remote hearings of any kind whether by way of Zoom, Microsoft Teams, WhatsApp, Skype, or any other audio visual or video-conference platform as provided for in the Practice Directions issued by the Chief Judge of Lagos State dated 4th and 15th May 2020.”
The plaintiff is also urging the apex court for “a declaration that it is not within the legislative competence of the 2nd Defendant or any other body, person or authority whatsoever to make laws or otherwise amend the Constitution for the regulation of the practice and procedure of the courts of Lagos State having regard to Section 274 of the Constitution”.
“A Declaration that the Bill presented before the 2nd Defendant seeking to specifically include remote hearing in the Constitution constitutes a usurpation of judicial function”.
In a 45 paragraph affidavit sworn to by Oluwayemisi Osisanya, a State Counsel in the Ministry of Justice, Lagos State, she stated that following the outbreak of coronavirus pandemic which practically halted judicial proceedings in Courts in Lagos, the National Judicial Council (NJC) issued Guidelines on 7th May 2020 to aid the dispensation of justice in Nigeria.
She further averred that pursuant to the provisions of Section 274 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) the Chief Judge of Lagos State issued Practice Directions to accommodate virtual or remote hearing.
“Osisanya also claimed that, “the amendment process of the 2nd Defendant is threatening to disrupt the smooth running of the judiciary in Lagos State and the administration of justice on account of the uncertainty being created by the amendment process.
“The Constitution is an organic document that should be interpreted broadly as held by this Court in MARWA V. NYAKO (2012] 6 NWLR (Pt. 1296) 199 where this Honourable Court held that “while the language of the Constitution does not change, the changing circumstances of a progressive society for which it was designed can yield new and further import of its meaning”.
“I know as a fact that divergent views on whether or not virtual court proceedings are in compliance with Sections 36(3) and (4) of the Constitution and Section 200 of the ACJL has caused the Plaintiff to become apprehensive in respect of the validity of the virtual proceedings conducted pursuant to the Practice Direction issued by the Chief Judge of Lagos State.
“I know as a fact that the Plaintiff is worried that the effect of the steps being taken by the 2nd Defendant to amend sections 36 [3) and (4) of the Constitution would be to render virtual proceedings conducted pursuant to the Practice Directions issued by the Chief Judge of Lagos State as unconstitutional. Because this would mean that every virtual hearing conducted prior to the amendment was unconstitutional.
“I know that a pronouncement by this Honourable Court with regard to the proper interpretation of the provisions of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) as it relates to the power of Courts to conduct virtual or remote hearing proceedings will assist in resolving this issue,” Osisanya stated
The Supreme Court is yet to fix a date for the hearing of the matter.