The quest to digitalize proceedings in Nigerian courts: clarifying the optics – Part 1
Ayodele Akenroye, PH.D.
In a series of articles, Dr. Ayodele Akenroye closely examines the issues that arise in the drive to digitalize proceedings in Nigeria Courts at a time when they have become especially relevant in light of the COVID-19 pandemic.
To curb the spread of COVID-19, the Nigerian government implemented a lock-down and recommended physical distancing, which made it very difficult for courts to hold in-person hearings and administer justice. In response, on March 23, 2020, the Chief Justice of Nigeria issued a letter addressed to all Heads of Court at the Federal and State levels instructing them to suspend all court sittings, except in cases that are urgent, essential or time-bound, for two weeks. In a follow-up letter dated April 8th, 2020, the Chief Justice extended the suspension of court proceedings indefinitely, except for cases that are urgent, essential or time-bound.
Due to the indefinite suspension of court proceedings, and growing caseload in courts all over the country, there has been a huge clamour by stakeholders and interest groups such as the Justice Reform Project and some States’ Attorneys General that the Nigerian judiciary should utilize technology to conduct court proceedings and open back the courts. In response to the clamour, several judges, in silos, began to utilize technology to resolve disputes or deliver judgements. For instance, the Chief Judge of Borno State conducted a virtual hearing and the Chief Judge of Lagos State Judiciary issued a practice direction that Judges in the States are to hear cases through remote hearings as from May 4th, 2020. Equally, some States’ Attorney Generals accelerated plans to have their judiciaries move to electronic hearing and electronic filings. On the opposing end, the Chief Judge of the Federal High Court issued a directive that Federal High Court Judges should not utilize technology such as Zoom and Skype for Business to administer justice until the National Judicial Council has implemented a uniform approach on remote hearing and the use of technology in court proceedings.
This is the first in a series of articles for BusinessDay Nigeria, where I will provide evidence-based best practices that stakeholders in the Nigerian justice system can adapt as they move along in building a robust infrastructure for the digitalization of proceedings in Nigerian courts. My thought in this contribution is that now is the time to adopt technology to deliver justice, but it should not be done at a lightning speed. In moving to a digitalized environment, stakeholders in the justice system should be thoughtful about the implementation, adopt a systematic process, do not operationalize the process in silos as it is currently been done, and should only move select cases to virtual formats to avoid creating chaos in the system and further exacerbate the current access to justice problems. No doubt, moving to a remote hearing by teleconference has several important benefits, but it also triggers new risks that must be carefully managed for the project to be successful. Truth be told, implementing change in the Nigerian justice system, which over the years has been stubbornly resistant to change, is difficult. Adding technology to the mix has the possibility of alienating many from the project. It is therefore imperative that relevant stakeholders in the Nigerian justice system proceed at a pace commensurate with the state of available technology in Nigeria, funds and pay close attention to the capacity to roll out training for all the participants such as judges, lawyers and litigants.
The path to modernizing the justice system in Nigeria is filled with hurdles and the most obvious is the substantial cost involved in digitalizing court proceedings, particularly when it is an open secret that the judiciary is the least funded among the three arms of government. Leveraging technology effectively and building a robust infrastructure from the ground up will require increased allocation of funds to the judiciary and actively nipping corruption in the bud.
Great care must be taken that in digitalizing court proceedings, it should not be too complicated that the relevant parties (judges, lawyers and litigants) are not able to quickly figure out how to use them. Closely related to this is the challenge of getting lawyers to learn electronic processes and adopt remote hearing as their preferred mode of litigating. Any attempt to move en masse to remote hearings will have the unintended consequence of prejudicing clients’ interest who might have retained lawyers who are not computer literate, or not familiar with electronic processes and remote hearing and this will, in turn, overburden the system and exacerbate access to justice for those that needs it the most.
As the relevant stakeholders in Nigeria continue to push for the digitalization of court proceedings which requires the use of digitally-based communication channels, as opposed to physical courthouses, as the new fora for delivering justice, a question that should be topmost on their mind is “how can we digitalize a court system which balances access to justice, cost to litigants, the cost to the justice system, fully functional and relatively easy to use?” The failure to consider this question by the stakeholders could lead to a missed opportunity to make systemic changes and effectively deliver justice in normal and extraordinary circumstances.
COVID-19 has provided an opportunity for Nigerian judges, lawyers and litigants to adopt a modernized system of electronic filing and remote hearings as means of resolving disputes effectively and efficiently. However, this fundamental reform will only be successful if all the stakeholders act co-operatively and flexibly. Any attempt to focus more on the speed of implementation at the expense of a carefully calibrated implementation strategy could result in the quick death of a noble idea.
Dr. Ayodele Akenroye is a Board Member (Immigration Judge), Immigration and Refugee Board of Canada/Government of Canada, formerly a Visiting Professional, Office of the Prosecutor, International Criminal Court, The Hague, Netherlands. He was a Research Fellow with the International Anti-Corruption Academy, Laxenberg, Austria and was a Consultant to Nigeria’s Independent Corrupt Practices Commission, Abuja, Nigeria. He earned his Ph.D. in International Criminal Law from McGill University, Faculty of Law, Montreal, Canada. He is called to the bar in Nigeria, Manitoba (Canada) and Ontario (Canada).