I write, as a concerned member of the Nigerian bar, regarding a subject which has generated controversy among members of the bar and indeed the larger public in the past week.
Confidence in the judiciary is at an all-time low. On 22 May 2023, at the opening ceremony of the annual conference of the National Association of Women Judges, Your Lordship urged judges sitting in election petition matters across the country to do substantive justice and eschew technicalities, in order to restore the confidence of the public in the judiciary. It is against this backdrop that I write in relation to the directive of the Presidential Election Petition Tribunal (PEPT), prohibiting mobile phones and other electronic devices from the courtroom.
As campaign activities towards the presidential elections kicked off officially last year, the longsuffering people of this country were once again presented with an opportunity to change the trajectory of our country. The country has suffered severe economic woes and an unusual level insecurity in the past couple of years. Even judicial officers have been kidnapped! For this reason, the February 25 election was regarded by most as a pivotal moment in our history.
In spite of the electoral reforms introduced by the National Assembly through the promulgation of the Electoral Act 2022, and the allocation over N300 billion to the electoral process, we witnessed widespread violence and electoral malpractice reminiscent of the 1964/65 elections.
The electoral process and the result have been challenged in court by the two main aggrieved parties, the People’s Democratic Party (PDP) and the Labour Party(LP). Given the public importance of the case, the PDP and LP requested for a live telecast of the proceedings. On 22 May, 2023, the PEPT dismissed these applications, citing the non-existence of a procedural framework for the requests. One cannot but wonder why there needs to be a specific provision in the Rules of Court, Practice Directions, or any other procedural framework in order to allow a live telecast of court proceedings, and why such a request could not be granted under the inherent jurisdiction of the court.
It was merely a request for a greater degree of transparency than we may be accustomed to. Granting such a request does not entail any extraordinary measures beyond directing the media houses who are interested in providing the live coverage to liaise with the court registrar ahead of court sittings to ensure that it is carried out in an orderly manner. In the spirit of transparency, other African jurisdictions have livestreamed court proceedings of national importance including election petition matters.
On a related note, the PEPT had directed on 19 May 2023, that from Monday 22 May 2023, mobile phones and other electronic devices would not be allowed into the courtroom. On 22 May 2023, when court officials sought to enforce this restriction, a heated argument ensued. Subsequently, a loud protest followed. Eventually, the court officials backed down and litigants and lawyers were allowed into the courtroom with their devices.
In the middle of proceedings, the issue was raised again by the presiding judge, Justice Haruna Tsammani who sternly reiterated his position, stating that it is in the best interest of the court not to allow electronic devices into the court. He did not explain how silent mobile phones or electronic devices will prejudice the sitting of the court. He once again directed that, phones and electronic devices will not be allowed into the courtroom in subsequent proceedings from 30 May 2023.
From all indications, the concern of the PEPT regarding the presence of mobiles and electronic devices in the courtroom has little or nothing to do with the possibility of those devices ringing or disrupting proceedings. If this is the concern, there are effective ways to deal with it. Going by the latest warning of Justice Tsammani, it appears that the prohibition stems out of the concern about real time updates on the proceedings emanating from the court, and the prospects of verbatim transcripts emanating from outside the court registry.
One may therefore conclude that the real motive behind the restriction is a desire to maintain a monopoly over the record of proceedings. This is extremely disturbing for a number of reasons.
First, transparency is one of the hallmarks of our legal tradition. There is no room for the perception of secrecy in the conduct of court proceedings. Other than proceedings conducted in camera for reasons bordering on national security, state secrets and related concerns, our courts have no business restricting the use of silent electronic devices merely for the fear that proceedings – which are meant to be public anyway – will be recorded.
At a time when the judiciary is seeking to restore the confidence of the public, the court should not create a new and dreadful culture of secrecy. A dangerous precedent will be set for mischievous judicial officers in the lower courts who wish to manipulate court records.
Even if one argues that the proceedings cannot be said to be secret on the basis that the general public is allowed into the courtroom, going to great lengths to prohibit silent electronic devices for fear that the proceedings will be captured on tape is already generating negative inferences.
Secondly, in this digital age, it is now the norm for lawyers to use electronic files and libraries. This practice became more popular with the Covid-19 lockdown. These days, many lawyers prefer to use a tablet for their courtroom work as this obviates the need to carry numerous physical files and volumes of books. Lawyers have been using these devices silently in court without any form of disturbance to the court for years.
Therefore, the prohibition which the PEPT seeks to impose will place an unnecessary burden on lawyers to return to the Stone Age. More importantly, prohibiting the use of silent electronic devices which do not disturb, disrupt or interfere with the proceedings of court in any manner, potentially violates the right to personal liberty of lawyers. To adopt the language of section 45 of the Constitution, there is no reasonable justification for such a restriction, especially in a supposed democratic society, in the instant case.
On the premise of the foregoing, I respectfully appeal to Your Lordship to preserve the openness and transparency which exist in Nigerian courts, and the right of lawyers to the use of technology in a decorous manner, in the conduct of their cases in all courts and tribunals across the country.
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Adebowale Aluko can be reached at [email protected]. The letter was originally published in the West Africa Weekly by David Hundeyin