The Constitutionality Conundrum on Virtual Court Sittings in the Covid-19 Period in Nigeria

Abstract

In May 2020 a Nigerian High Court sentenced Olalekan Hameed to death via Zoom. Amid the controversy, Rhodes-Vivour JSC, striking out Attorney General of Lagos State v Attorney General of the Federation, instituted to clarify the constitutionality of virtual court sittings, pronounced: ‘[v]irtual sitting as of today are not unconstitutional’. Analysing sections 36(3) and (4) of Nigeria's Constitution alongside judicial authorities on the public hearing imperative, this article argues that the issue is not so much whether virtual sittings are unconstitutional as whether enough has been done to ensure public access to the proceedings. This view is fortified by the elaborate procedure recommended in the Guidelines for Court Sittings and Related Matters in the COVID-19 Period 2020. To ensure access to justice is not truncated, the article recommends: (1) the Chief Justice of Nigeria's (CJN) inclusion of virtual sitting rules in the Fundamental Rights (Enforcement Procedure) Rules, as restrictions during emergency periods affect fundamental rights; and (2) that all other heads of courts embed the virtual sitting rules in their court rules. This, it is concluded, would prevent haphazard adoption of virtual sittings for adjudication, which could invalidate such sittings for failing to meet the proceedings in public requirement of the Constitution.