The courtroom setting
Three thuds on the door leading to the Judge’s chambers followed by the cry of ALL RISE! is typically how a court session begins in Ghana. A Ghanaian courtroom is most often a public place except in some instances (e.g. in divorce proceedings, other family law related matters and by an application made to the court) when proceedings are held in-camera. A courtroom is broadly divided into four sections. The bench where Judge(s) sits, the bar where lawyers sit, the well which is the section between the bench and bar where court clerks sit. The gallery is where members of the public sit. In the well, one would also see a witness box where a witness sits to testify in a case. Adjacent to the courtroom is the Judge’s chambers where the Judge retires after the day’s work. Court proceedings meant to be in-camera are sometimes held in the Judge’s chambers. In our history, a number of judges were abducted and murdered. Since then, the state has provided judges with uniformed, armed police officers detailed for their protection. These police officers sometimes assume the role of court warrant officers (a.k.a. court bailiffs in other jurisdictions) responsible for maintaining order in the courtroom.
Technology in Ghanaian courtrooms: with my periscope
Sometime back, typewriters were predominantly the technology used by the courts. Then came stenography machines, voice recorders, computers, microphones, speakers, cell phone jammers and air-conditioners in some courtrooms. Today, lawyers are permitted to take and use various kinds of tablets and laptops in the courtroom. This was not so some few years ago. I recall various instances in 2007/2008 (the era before tablets) when I was prevented from using a palmtop and a bluetooth laser keyboard in the courtroom-I had to persuade the court to use it .Before a district court in 2009, I was asked to produce the computer which generated the email print out sought to tender as evidence. I also recall in 2014 when I was prevented from using my Ipad Mini in the Supreme Court. In other instances however, the green light was given for the use of a laptop, projector and laser pointer to conduct trials in the commercial court. Even with the advent of software for cases and materials, some courts still required that you brought along physical copies of law reports and statutes to the courtroom in order to be able to rely on them as authorities. Despite the boom in the cell phone industry in Ghana and related technology, one still has to travel all the way to the court only to be told the court is not sitting or that the case you are handling would be adjourned.
The first ever live television broadcast from a courtroom in Ghana was the election petition case in 2012. Was this going to be the dawn of a new era? In 2015, the High Court (Civil Procedure) Rules, 2004 (CI 47) was amended to allow for evidence to be taken by video link. The application of this amendment (Order 38 rule 3A, C.I. 87) was tested in an unreported case. The Commercial Court in its ruling dated 6th May 2015 dismissed an application filed be the Defendant (in the unreported case) praying for its only witness, resident outside Ghana to give evidence by video link. One of the grounds for dismissing the application was that in view of the nature of the Plaintiffs case and Defendant’s denials, the credibility of the Defendant was in issue and the Court’s ability to assess this would be compromised where the witness was not physically present.
As of today, official record of proceedings are still recorded by handwriting in some courtrooms. Imagine having to wait for a copy of a judgment or official record of proceedings for about three months. “How do you manage to explain this to your overseas client?” is what one client asked me. Even with the current state of affairs, audio recording of proceedings by lawyers is still considered a taboo so you find me on my feet typing questions and answers on my Ipad Mini and others taking handwritten notes.
The case for a virtual court
With the above background, it is apparent that the creation of a virtual court may not be embraced by all. Nevertheless, I make the case for virtual courts to be established in Ghana. Our courtrooms and car parks have become choked. You walk into a courtroom and you see lawyers and their clients lined up or leaning against the walls in the courtrooms and corridors waiting for their cases to be heard. The courts are so congested that even conference rooms have been turned into crammed courtrooms. This is not a pleasant sight. Is the only option to build more courtrooms or increase court fees to discourage litigation as has been done over the years? The answer is No. Luckily for us the 21st Century has given us the gift of technology and in this instance a virtual court.
By observation, a vast majority of the lawyers and clients clogging up the court premises attend court for motions and not for substantive cases to be heard. In addition to this, the motions end up being adjourned for one reason or the other. The case is therefore being made that at the very least, a virtual court should be set up to hear and determine motions. With a virtual court, physical presence of lawyers and clients on court premises would not be required. A virtual court would allow lawyers and their clients to have their motions heard from their chambers and conference rooms. This would free up the courts making room for substantive cases ripe for hearing to be heard. There would be no need for lawyers or clients to drive or travel all the way to the court and choke the premises only to be told that the case would be adjourned. With a virtual court, when the scheduled time is up, the lawyer or client logs in and if the case is to be adjourned, a notification would pop up in that session. There could also be the option of prior notification even before logging in. A virtual court would result in time and productivity savings for lawyers, clients and judges. It will take away the time spent in traffic and waiting in the courtroom for cases to be called. While waiting for a virtual court session, lawyers would be able to continue doing work which almost invariably requires confidentiality and privacy. Clients would also be able to go about their personal or business duties until it is time for them to log in. Judges on the other hand would also have more time to focus on substantive cases thereby resulting in speedy trials.
Today’s litigation lawyer and law firms for that matter are already equipped with the necessary tools (smart phones, tablets, laptops, webcams, internet connectivity) to participate in or attend virtual court sessions. The use of the smart phones and tablets should not be limited to making phone calls and keeping calendars. Their full potential must be exploited by litigation lawyers to aid litigation. With the commissioning of the new court complex which has been described as “IT heavy”, the Courts on the other hand also have the necessary basic infrastructure to conduct virtual court sessions. Judges would also not require any special skill or training to adjudicate in a virtual court. Various off-the-shelf web and cloud based video conference platforms are now available for use. Given the availability of these tools, establishing a virtual court in Ghana needs no reinvention.
Imagine that accused persons and prisoners on remand miss their bail hearings and court days simply because there is no vehicle to transport them to the court premises. A virtual court would allow accused persons and prisoners to login and have their bail applications heard right from the prisons.
The contention that the court’s ability to assess the credibility of a witness who was not physically present in the courtroom would be compromised (as stated in the unreported case) would not arise in a virtual court set up to determine motions. Bail applications are by motion and practically all motions are determined based on motion papers, affidavits and exhibits filed in court. Lawyers hardly cross-examine deponents. Since almost invariably there would be no witnesses to examine, the issue of credibility of witness would be nonexistent.
The fast track court experience
The Fast Track High Court of Ghana (FTC) was a High Court with computers, audio recording and case management facilities designed for speedy and effective trial. It was set up by the then Chief Justice of the Republic of Ghana. In 2002, the constitutionality of the FTC was challenged in the Supreme Court. The basis of the challenge was that the FTC was unknown to the Constitution of the Republic of Ghana. Some of the points argued were that the FTC was not mentioned under Article 126(1) of the Constitution and parliament had not by law established a lower court called the fast track court. By a 5-4 majority decision, the Supreme Court ruled that the FTC was unconstitutional. However, on review, the Supreme Court reversed its decision and held that the FTC was constitutional by a 6-5 majority decision delivered on 26th June, 2002. On review the Supreme Court also held that the Constitution gave the Chief Justice the discretion to establish divisions of the Court of Appeal and High Court without recourse to any act of parliament, constitutional or statutory instrument.
On the authority of the case summarized above and cited as ATTORNEY-GENERAL NO.2 V. TSATSU TSIKATA (NO.2) (2001 – 2002) SCGLR 620, even though a virtual court is not mentioned in the Constitution it would be possible to set it up as a division of the High Court or Court of Appeal. Establishing a virtual court has several advantages and is certainly doable in Ghana.
Certainly, a virtual court in Ghana will benefit the courts/judicial system, clients, lawyers and the environment. It will drastically reduce the number of lawyers and litigants coming to the court premises. It will significantly reduce the number of vehicles in the car parks and the direct consequence of traffic jams and the resultant environmental pollution. Ultimately the virtual court would reduce the cost of litigation and improve access to justice.
Author: Nana Yaw Ntrakwah
Partner, Ntrakwah & Co.
21st August 2017