Ekiti AG writes Malami, seeks constitutional amendment to enable virtual court hearings

Ekiti State Attorney General and Commissioner for Justice, Olawale Fapohunda has written to the Attorney-General of the Federation, Abubakar Malami SAN, seeking an amendment of a Section of the Constitution to enable virtual hearing of court cases in the country.

Fapohunda in a letter made available to Tribune Online on Tuesday, titled “NJC Guidelines on Remote Court Hearings/ Need for Constitutional Amendment” stated that the objective of this provision was to undertake as many hearings as possible remotely so as to minimise the risk of transmitting COVID-19 among court users.

The letter reads: “On 7th May 2020, the National Judicial Council (NJC) published its ‘Guidelines for Court sittings and Related Matters in the COVID-19 Period.

“An important content of the said guidelines is the provision for virtual or remote court sittings in all courts in the Federation, notably the Federal and States Judiciaries. The stated objective of this provision is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of COVID-19 among court users.

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“This provision on remote hearings has raised a number of legal issues including whether the proposed remote hearings are to be held in public or in private as well as the implications on Section 36 (3) (4) of the 1999 Constitution of The Federal Republic of Nigeria (as amended).

“Section 36 (3) (4) of the 1999 Constitution of the Federal Republic of Nigeria as amended provides as follows:
‘(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.

“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal…”

He added that: “The argument for public hearings is further strengthened by the decisions of the Supreme Court in a number of cases including but not limited to Edibo v. The State (2007) 13 NWLR (Pt. 1051), Nigeria-Arab Bank Limited v. Barri Engineering Nig. Ltd. (1995) 8 NWLR (Pt. 413) 257, Alhaji Nuhu v. Alhaji Ogele (2003) 18 NWLR (Pt. 852) 251.

“It is beyond argument that the combined effect of the Constitutional provisions and the Supreme Court Decisions is to unequivocally affirm the principles of open justice in situations not envisaged by the reality of the COVID-19 pandemic. The draftsmen of the Constitution could certainly not have envisaged a situation where the entire judicial architecture in Nigeria will be grounded to a halt and where physical court sittings could potentially become a matter of life and death.

“Although it has been argued that the composition of the NJC makes it unlikely that decisions given by remote hearings in furtherance of Article 12 (a) and (b) of the NJC guidelines could be set aside, I am of the considered view that the amendment of Section 36 (3) (4) of the Constitution will achieve clarity and leave no room for further debates or speculations on the matter.

“May I therefore respectfully invite your office to consider proposing an Executive Bill for the consideration of the Federal Executive Council and the National Assembly on the amendment/ review of Section 36(3) (4) of the Constitution to reflect the practical challenges the emergence of COVID-19 has placed on the functionality of the Judiciary.

“The Judiciary has taken a first and important step towards ensuring access to justice for Nigerians in the face of the pandemic. It is now left to the Executive and the Legislature to support this initiative in the interest of the administration of justice system.”