Law

Judiciary in COVID-19 year

AKEEM NAFIU reviewed activities in the nation’s judiciary in 2020 amidst COVID-19 pandemic and concluded that the outgone year was the most challenging in the annals of judiciary

It was like a child’s play when the Chinese government on 31st December, 2019, alerted the World Health Organization (WHO) to several cases of ‘unusual pneumonia’ in Wuhan, a port city of 11 million people in the central Hubei Province. The ‘unusual pneumonia’ was said to have infected workers at the city’s Huanan Seafood Wholesale Market.

The market was subsequently shut down on 1st January, 2020. Amidst growing alarm, the World Health Organization (WHO) later found out that the ‘unusual pneumonia’ belonged to the coronavirus family.

Since 11th January, 2020, when China announced a 61-year-old man, who had purchased goods from the seafood market as its first fatality from coronavirus, reports of deaths owing to the disease had been mounting from almost all countries of the world.

As many countries across the world are infected, the outbreak of coronavirus also codenamed COVID-19 was later declared as pandemic by the World Health Organization (WHO). The pandemic is yet to abate as many countries of the world are currently locked in its resurgence with global confirmed cases rising beyond 81 million while death toll from the disease across the world is now over 1.8 million.

Nigeria’s experience

The first case of COVID-19 in the country was announced by the Nigeria Centre for Disease Control (NCDC) on 27th February, 2000. The victim was an Italian who came into Nigeria from Milan.

The Italian arrived on February 24 on a Turkish Airlines flight that had a connection in Istanbul. He was in Nigeria for almost two full days travelling through Lagos and visiting Ogun State before he was isolated. After spending the night in a hotel near the airport, he arrived in the neighbouring state of Ogun on February 25 at his place of work.

He stayed there until he developed a fever and body aches on the afternoon of February 26. Health practitioners with his company then contacted biosecurity authorities, who transferred him to a containment facility in Yaba, Lagos state.

The infection was confirmed on February 27 by the Virology Laboratory of the Lagos University Teaching Hospital, part of the Laboratory Network of the Nigeria Centre for Disease Control. Since the announcement of the first case of COVID-19 in Nigeria on February 27, the incident of infections has been on the increase across the country with Lagos State being the epicenter of the disease.

Sadly, the nation is currently battling with the second wave of the pandemic after months of recording low figures by the day, Nigeria’s COVID-19 cases spiked in December 2020. The Presidential Task Force (PTF) on COVID-19 had earlier announced that Nigeria was now facing a rise in confirmed COVID-19 cases nationwide similar to the second wave of infections globally.

PTF chairman, Boss Mustapha, had also disclosed during the task force’s media briefing in Abuja that the current pattern of spread was likely caused by general lack of compliance for public health preventive measures. He said: “The disregard has led to a sudden increase in super-spreader events involving large congregations from different parts of the country.

The relaxation of previous restrictions on social and economic activities has also contributed to the uptick in the number of new cases recorded in Nigeria. “To combat the new surge, bars, night clubs, pubs, event centres and recreational venues are to be closed nationwide. All restaurants should also shut down, except for those providing services to hotel residents, takeaways, home deliveries, and drive-ins.

“Formal and informal festivity events like weddings, conferences, congresses, office parties, concerts, seminars, sporting activities, and end-of-year events have also been restricted to not more than 50 people.

“Religious centres are to also operate at less than 50 per cent capacity of the facility of use with other safety measures strictly enforced. Public transportation systems are to carry passengers not more than 50 percent of their capacity, in compliance with social distancing rules. “State governments must also reduce overcrowding in public spaces by encouraging virtual meetings in government offices, and ensuring staff work from home where possible”.

Judiciary in 2020

Like every other arms of government, the judiciary also shared in the devastating effects of COVID-19 pandemic. Activities at the various temple of justice in the country were at some point grounded sequel to a directive from the Chief Justice of Nigeria (CJN), Justice Tanko Muhammad.

The CJN had on 24th March, 2020 ordered closure of all courts across the country for an initial period of two weeks to curtail further spreading of the virus. However, on the expiration of the earlier directive on 7th April, 2020, the CJN ordered that courts nationwide should remain shut till further notice.

A circular personally signed by the CJN regarding the directive reads: “In tandem with the COVlD-19 Regulations 2020 and as a preventive measure against the spread of the virus in the country, the CJN had by a circular No. NJC/CIR/HOC/11/656, dated 23rd March, 2020 directed all heads of courts to suspend court sittings for an initial period of two weeks from 24th March, 2020.

“In view of that, I’m aware that the initial period of two weeks suspension of court sittings will expire on 7th April, 2020. “l hereby extend the suspension of court sittings till further notice given the lockdown measure put in place by the federal and some state governments to curb the spread of COVlD-19. “Your Lordships are however, to note that courts are expected to sit particularly to dispense matters that are urgent, essential or time bound in line with our constitution.

“Your Lordships are hereby directed to bring the content of this circular to the notice of all stakeholders in justice administration”. However, to avoid a situation where court activities are totally grounded, the Chief Judge of the Federal High Court, Justice John Tsoho, also issued new Practice Direction for all the Divisions of the Court in the country. In the Practice Direction, Justice Tsoho directed all judges of the court to adopt virtual proceedings for court cases.

The virtual proceedings can be either by Zoom, Skype or any other audio-visual platform approved by the Court. The directive, however, provided that proceedings can only be held virtually with the consent of parties and their lawyers. Justice Tsoho also directed that where parties and their lawyers agreed to virtual proceedings in a case, they should liaise with the court’s Registrar to schedule the hearings. Virtual proceedings must also be stated on the Cause List, posted on the court’s website and communicated to lawyers and parties, either by e-mail or any other electronic means.

Judges and lawyers taking part in such proceedings are also expected to be properly robed. Also, under the new rules, judges of the Federal High Court cannot handle more than nine cases in a day.

Other directives in the new 2020 Practice Directions for the COVID-19 period are: “Service of court processes may be effected by e-mails, WhatsApp or as may be directed by the Court, and shall be deemed as good service. “Service of hearing notices may be effected by e-mail, WhatsApp, text messages or as may be directed by the Court. The print out of same shall be sufficient proof of service.

“Face masks must be properly worn by everyone within the court premises to cover their mouths and noses at all times. “Every person within the premises of the court and inside the court room shall observe the requirement of social and physical distancing of not less than 2 meters (6 feet) apart from each other. “At any given time, there shall not be a congregation of more than ten (10) within the Court premises, except for purposes of court sittings. “There shall not be more than twenty (20) persons inside the court room including the court staff and counsel at court sittings”.

Bill to legalize virtual proceedings

In the wake of the ratification of virtual court proceedings by the National Judicial Council (NJC) as a way of ensuring continued administration of justice amidst COVID-19 pandemic, a constitution alteration Bill seeking to legalise virtual court proceedings was introduced at the Senate. The Bill titled; 1999 Constitution of the Federal Republic of Nigeria (Alteration) Bill, sponsored by Michael Bamidele (APC, Ekiti Central), was to allow for an alteration of relevant provisions of the Constitution to give legal backing to virtual court proceedings.

Specifically, the Bill sought to amend Section 36(3) of the Constitution by adding the following: “Provided that nothing in this subsection shall invalidate proceedings of a court or the proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) where same is held by remote hearing or any virtual means now in existence or yet to be developed”.

Section 36 (4) was also amended by the addition of sub-paragraph (c) as follows: “Nothing in the foregoing paragraphs shall invalidate proceedings of a court or the proceedings of a tribunal relating to matters mentioned in subsection (1) of this section (including the announcement of the decisions of the court or tribunal) where same is held by remote hearing or any virtual means now in existence or yet to be developed”. Section 36 (12) was also amended by the addition of the following subsection (13): In this section, “remote hearing” means proceedings or hearing of court conducted via Zoom, Skype, WhatsApp video or any other social media platform or technological innovation”. According to the Bill promoter, Section 36 (3) is sufficiently controversial enough now in terms of the requirement of public hearing and determination of disputes and this had put the results of proceedings held virtually in jeopardy.

Senator Bamidele added that except the amendment is done urgently, the whole judicial functions of the nation will remain paralysed. He said: “The National Judicial Council (NJC) in the wake of COVID-19 pandemic and the inability of courts to hold courtroom proceedings had taken steps to ensure continued administration of justice through virtual proceedings in accordance with global best practices, with some State Chief Judges coming out to openly adopt and implement the NJC guidelines.

“However, Nigerian lawyers have been divided over this issue as there has been an ongoing debate among legal practitioners as to whether or not virtual hearing is real hearing as provided for in the Constitution while some are insisting that the word ‘public’ in the Constitution shall continue to mean physical courtroom or other designated place unless and until the relevant provisions in Section 36 of the Constitution are amended.”

Lawyers speak

Some senior lawyers have in the meantime been speaking on the challenges posed by COVID-19 on the judiciary in 2020. The lawyers lamented the disruption of normal court sessions across the country occasioned by the ravaging COVID-19 pandemic. In his comments, a Senior Advocate of Nigeria (SAN), Chief Mike Ahamba, noted that the pandemic caused a lot of problems for the judiciary in 2020. He said: “One sector which activities were obstructed by COVID-19 is the judiciary. The pandemic really created a lot of problems for the third arm of government.

Many cases that ought to have been concluded are still ongoing and new ones are coming in. “People are suffering for it because criminal cases which ought to have been concluded for the defendants to know their fate are still being heard in court.

This is most unfortunate. So, the judiciary actually paid heavily for this COVID-19.” Another silk, Mr. Kunle Adegoke, also noted that with the challenges posed by COVID-19, it can no longer be business as usual for the third arm of government “It’s been a very challenging year with its own peculiarities. In any case, all institutions have their own challenges and of course, the challenges confronting the judiciary are still there.

They have not left and I don’t think they are ready to leave soon, except with concerted efforts from all stakeholders. “Fundamentally, there are areas that I believe the judiciary should look into, particularly on the issue of equipment; equipping the judiciary to be able to face the challenges.

On this, I want to talk on COVID-19 and the challenges it posed to the judiciary. Nobody anticipated it and now it has become very apparent that we must be ready to deploy technology much more than before. “The issue at some point was whether it was even proper for a court to deliver judgement virtually unlike the physical approach that we are all used to.

It came to a point that it was practically impossible for any court of the land to even sit and everything was suspended. There are infrastructures that must be provided which the government must be ready to deploy immediately.”

To Dr. Fassy Yusuf, the challenges posed by COVID-19 have brought about new ways of doing things and the judiciary cannot be an exception. He said: “No institution was immune from the devastating effect of COVID-19, hence, the coinage of ‘new normal’. COVID-19 has brought about innovative ways of doing normal things and institutions including judiciary are now thinking outside the box.

“We now have Zoom or Google hearings, electronic service, electronic judgements delivery, etc. that are likely to expedite justice administration in the country. To every disastrous event, there could be some fine points. COVID- 19 is one.”

Mr. Kabir Akingbolu also spoke of the damage done to the third arm of government by the COVID-19 pandemic. “Year 2020 no doubt was a spectacular year and as such, it presented its peculiar problems and challenges in the administration of justice.

The strange and ravaging COVID-19 broke out unexpectedly and the whole world had to tackle the challenges it posed, especially in the area of adjudication and court proceedings. “There was complete lockdown and later partial lockdown but both crippled the judiciary completely as everything came to a halt in the judiciary because courts could not open and lawyers could not attend courts or render services to their clients.

“Pronto, the judiciary was resuscitated by stakeholders who brought in several innovations like virtual hearing, and other wonderful inventions to make the new practice sustainable and congenial with our laws, new rules and practice directions. Judicial pronouncements were handed down and rightly so that the judiciary or legal practice is an essential service which cannot be shut like every other sector of the economy or commercial activities.

“To say the least, the judiciary and its stakeholders did well within a very short time and all these remains part of us forever so much so that the practice of travelling thousands of kilometers to go and argue a simple application is now a thing of the past as virtual hearing has come to the rescue.

So in all ramifications, the judiciary in Nigeria fared very well and deserves a big accolade for the great and enviable feat it achieved in year 2020 under review,” he said. Mr. Ige Asemudara noted that 2020 is a sad year for the nation’s judiciary. He said: “The year was full of twists and turns.

It is one of a kind, rough and tough. The COVID-19 pandemic affected the entire world and in fact all sectors of the global political economy. In Nigeria, it was a sad year for the judiciary. There was lockdown and the courts were shut too.

People had restricted access to justice. So, the dockets of the courts were full and unattended to. Cases piled up, they were not treated. So, the volume of pending cases rose. “In the same year, the #EndSARS protest occurred.

As an aftermath of it, courts were looted and burnt down. For instance, the Lagos State High Court in Igbosere was looted and then burnt down, the Ondo State High Court, Okitipupa and the Magistrates Courts were set ablaze and razed down, the same happened somewhere in Anambra State, the Court of Appeal, Lagos Division was also looted. So, these set back the system of justice administration and dispensation.

“On the other hand, the COVID-19 lockdown enabled the judiciary to begin to reinvent itself. It is during this year that we began to have virtual court hearing heralded by the Borno State High Court e-hearing and so many other courts have now followed.

So, courts now hear cases through online video-conferencing tools like Zoom, Teams, Skype etc. That is a gain in its own right. “However, we must admit that it is a terrible year especially that the problems were compounded by worsening Insecurity, ailing economy and large scale corruption in the country under the watch of President Buhari. This has its own bandwagon effect on the judiciary like other arms. We can only pray for better years.”

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