COVID – 19 and the Need for Judicial Re-Think
Crisis has a way of bringing to light what has been hiding beneath the surface. The ongoing COVID – 19 pandemic, the worst global crisis in a century, has exposed the pre-existing fragilities in Nigeria and lay bare the age-long failure and inability to read the room.
The ravages of the pandemic have been all-encompassing, with its economic impact partly sign-posted by the steep drop in the price of oil, Nigeria’s major source of revenue. The situation has left a huge revenue gap, interruption of the government’s revenue projection and leap in the country’s debt profile. The health sector has also been exposed as expectations failed to match abilities, with the agricultural sector experiencing disruptions to supply chains following the interruption of production, distribution and trade of food.
The judiciary was also in the mix as the courts were closed, with criminal suspects kept in custody beyond the constitutionally stipulated periods and civil matters, including commercial issues like arbitration and contractual rights, kept on hold.
Efforts were however made by the National Judicial Council to mitigate the situation by recommending virtual court proceedings for Courts. Heads of Courts, at federal and state levels, relying on Sections 254(f), 259 and 274 of the Constitution (as amended), proceeded to make rules regulating the practice for their Courts.
The move ignited a debate on the constitutional propriety of virtual court hearings, going by the provisions of Section 36(3) and (4) on the right to fair hearing, especially on matters being heard in “public”. The National Assembly commenced amendment of the constitution to accommodate virtual court hearings, with the governments of Ekiti and Lagos states filing actions at the Supreme Court.
The Supreme Court finally resolved the constitutional validity of virtual court hearings on July 14, with the Justices holding that virtual sittings by Courts is Constitutional, empowering judges across the country to conduct proceedings with the practice.
The COVID – 19 pandemic has exposed the fallibility of the Nigerian economy. It has demonstrated that the economy was not built on sand, but on a flood plain which is now being tested against the rising economic sea levels. The water, sadly, is now pouring through the economic defences.
The economy would, therefore, need a reset including broadening the scope of economic activities, with proper identification of the changing markets and supportive measures to stimulate investors in the economy, like the recently announced investment plan by Orange, France’s biggest multinational telecommunication firm, expansion into Nigeria. Above all, the sharpest arrow in the quiver would be the enthronement of a stable legal order that would guarantee ascertainable rights in business transactions in the “new normal”.
The pandemic is spiking, thus exacerbating the need for continuous maintenance of the protocol on social distancing. Yet, in compliance with the protocol, the courts would be required to continue to deploy its power of dispute settlement process and inherent interpretative power to deal with disputes likely to arise from individual and corporate rights in a new business environment.
Virtual court sittings have already been given Constitutional imprimatur by the Supreme Court. Yet if the judiciary is to be pivotal in rebuilding the economy from the debris of COVID – 19, enhancement of Nigeria’s Information Communications Technological capabilities would need to be enhanced. But how?
Internet access in Nigeria, a major plank in the virtual hearing process, is not pretty, with problems ranging from inadequate broadband infrastructure, affordability, language challenges, among others. The plethora of mobile networks are operating with the aid of six under-sea cables.
Operated by fixed-line broadband providers, they are the connecting link between Nigeria and the rest of the world. It is estimated that Nigeria’s use of these cables is less than 10 per cent, given that the communicating capabilities of the number of telecom masts are through low-bandwidth microwave technology, with limited voice call technological reach.
Yet the use of video and other bandwidth, a major component in virtual court hearings, would require fibre optic cables. Upgrade of masts from microwave technology to fibre optic cables by telecom providers is currently ongoing, but the Nigerian Communication Commission (NCC) would need to redouble its supervisory efforts in this area, if Nigeria is to meet the NCC target of 120, 000 Km of fibre optic cables, from its current position of 27, 000 Km.
Such efforts would not only help bridge the digital gap in the country but will also aid the judiciary in ensuring sustainable virtual court hearings. The judiciary would also need to take steps, in conjunction with local and global companies like Google, Face book, Swift Network and Flobyt, to provide free internet access in the Courts.
The parlous state of electricity, another salient requirement in driving the virtual court hearing process, would equally need to be examined. Alternative sources of power generation, including Solar, Inverters, would need to be explored to ensure stable power supply.
In any event, the judiciary will not be able to deploy its saliency in the “new normal”, unless the full panoply of resources is deployed. A rethink of the budgetary allocation for the judiciary would, therefore, be required, as this would enable the adequate provision of the technology required for seamless virtual court hearings; training of the legal community in the use of technology; provision of infrastructural improvements; and acquisition of electrical devices. The instalment disbursement of budgeted allocations would also need to be re-tooled, as it would aid adequate planning in the deployment of funds into the various areas required to drive the new realities in the dispensation of justice.
The judiciary, moving forward, would need to hold itself to the higher standards expected as a major player. This is therefore not the time to retreat into the past, cling to the status quo or run for the hills raising a white flag. This is the time for the judiciary to transform itself into a strong institution influencing, shaping and making events in the “new normal” socio-economic environment.
Kesiena Igho Oghoghorie is a student at the Nigerian Law School, Enugu Campus