Introduction
The world over, a trial of a famous
person, politician, artist, footballer, or indeed any celebrity you can
think of, tends to generate a lot of excitement—prime fodder for the media.
Often the people and the media go into overdrive in what is described as
celebrification of crime. Many times, they come in and ‘convict’ the suspect or
‘exonerate’ the same, depending on the stand they take on the issue. But can
the media really convict or exonerate a suspect? Put differently, can the media
in Malawi really try a suspect outside the formal court system or influence
court verdicts at all?
The Role of the Media in a Democracy—the Malawian Context
If someone asked me to put in a few words the role the media play in a democracy, the African context especially,
my explanation would be: they are an informal independent referee on the field
of adherence to a respective country’s constitution. To explain this, a simple
picture of the relationship between those being governed and those governing
could be an important aid to help us appreciate the noble role the media play
in making our democracy tick.
The starting point should be that
people everywhere have values (moral, political, economic, cultural, social)
which, through some representations, are put together in a document—the
constitution (though a constitution can also be unwritten). Second, this
document which represents the will, wishes and aspirations of a people puts in
place a mechanism to elect (a few) representatives to safeguard and administer
those values, wishes, or aspirations on behalf of those people. In this way, these
people together with the state organs in which they serve are given power at
elections, meaning elections are a formal process through which
representatives are given authority and legitimacy by the masses to rule. Put
simply, elections give a few people power in a way acceptable to all or the
majority (legitimacy). This arrangement is akin to a form of social contract or
an arrangement of trust, kind of making those entrusted with this power
fiduciaries, i.e. put there to serve the interest of the people.
The role of the media in a democracy thus
is to answer the following questions: (1) Are those holding power holding it
the legitimate way? (2) Are they (together with the organs they represent)
serving the people? (3) Are the people afforded an opportunity to see what
these people, elected, are doing, i.e. is there openness or transparency in the
way they execute their duties? (4) And when they make a decision, are the
people afforded an opportunity to seek explanation (participation)? (5) Are
such explanations given the people, if yes, how timely (in Open Government,
this is described as responsiveness)? And lastly, (6) when these people in
power make bad decisions (decisions running counter to the wishes of the
people), are they held to account for the same (accountability)?
In short, constitutionally, the media
play the same role play the judiciary, i.e. ensuring that those in power serve
those who entrusted power to them, i.e. serve the people or public interest.
However, the only difference is that the media are not one of the three official
or formal branches of government—the executive, the legislature, and the
judiciary, and so equating them to the judiciary would be going overboard, kind
of usurping the judiciary of their powers. Their roles, are however, similar in
many fronts except that the judiciary represent a formal arm and are given the
powers to execute orders to ensure adherence to the constitution. To show a
clean demarcation, some media practitioners, for example, Carter, coined the
term ‘fourth branch of government’ to refer to the press. It is also important
to note that there are other bodies beside the media entrusted with this
watchdog role and are (together with the media) referred to as the civil
society. However, the media do not exactly fit in this because they also have a
role to watch even fellow members of the civil society category.
One would see that the media are set
apart to resemble the judiciary yet are not, but also to question any arm of
government and even fellow watchers, i.e. other members of the civil society. This is why I define the media as a set of legitimate
professionals in civilian ‘clothes’, entrusted with the role to ensure
adherence to a constitution of all parties entrusted with power by the people
for legitimacy and sustained trust.
That the media are set apart for this
special job can be deduced from the position of sanctity they, as a roving
messenger-cum-police officer, occupy in the Constitution of the United States. In
the words of Stanley J Baran, “The US Constitution mentions only one industry
by name as deserving special protection—the press” (2009, Introduction to Mass Communication: Media Literacy and Culture,
Boston: MacGraw-Hill, p 451).
Considering the importance of the
media in a democracy, it would be important to ensure the media operate without
any control whatsoever so they perform their roles unhindered. Unfortunately,
“because of their power and the often conflicting demands of profit and service
under which they operate, they are (and should be) open to some control”
(Baran, p 447). However, such control should be justified and not obtrusive,
i.e. should not be aimed at curtailing freedom of the press.
Although the media use the
constitution as a supreme checklist since it contains the values of the people,
for them to judge whether a piece of news is deserving of a place, they use
newsworthiness criteria. Often, what fits in those criteria is what makes news.
This is where the press differ widely with the judiciary which uses principles
set out and tested against bias, principles and standards acceptable in a
particular legal jurisdiction, and of course, arrived at through a rigorous
system of test and re-test. In short, the rigours used to determine
newsworthiness are less, less stringent than those used to arrive at a verdict
by the court, an independent referee. This means that it is possible that what
the media could consider important or crucial in line with agenda-setting (the
arrangement of issues about the public on a list of what should be addressed
first) could never be the very thing the court as an independent tribunal would
consider material. Unfortunately, the media are close to people and so what
they say is often easily grabbed by them as truth. In other words, “the media plays a
vital role in moulding the opinion of society and it is capable of changing the
whole viewpoint through which people perceive various events” (‘Effect of Trial
by Media Before Courts’ available at https://www.lawteacher.net accessed July 10, 2017).
When it comes to reporting crime, the
media, who use their own criteria to determine news can take their own
position, one that can conflict with the principles of fair trial. This is the
subject of this discussion.
Since the right to a fair trial has a
lot to do with the subject of crime and punishment, a little discussion on
approaches to crime and punishment would be in order.
Approaches to Punishment in Criminal Law
In criminal law, a person alleged to
have committed a crime is always presumed innocent until proven guilty by a
competent tribunal or court. This presumption forms the hub of criminal law,
and its application can be mind-blowing at times, for example, where suspects
are acquitted simply because they had been found guilty by the people and not
by the court (and this, even where they had looked genuinely guilty in the eyes
of the people).
This presumption—that one should be
presumed innocent until proven guilty by a competent tribunal—brings in the
necessity of fair trial, and the whole purpose of fair trial is that all sides
(including the ‘wrong’ party) should feel satisfied at the end of the trial
that justice was not merely done, but was also seen to be done. This
satisfaction is what brings in ‘ownership’ and so satisfaction with the
punishment meted out. Ownership of the punishment meted out simply means that,
though the convict (as one found guilty is described) will feel bitter with the
sentence or fine, if he or she saw justice being done, that no corners were cut,
that his rights were respected, (he or she) is bound to say, “Well, these
people did all they could to show me I did the society wrong, and I deserve
this.” He or she might not express this openly, but somehow within himself or
herself he can have that feeling and therefore accept the suffering for his or
her crime.
To achieve this ownership or
consensual closure, the court first ensures that the rights of both the accused
and the wronged victim are protected. The Constitution of the Republic of
Malawi caters for both sets, and it is interesting that the most important
provisions on these are put just one after the other, i.e. section 41 (rights
of the victim) and section 42 (rights of the accused). The rights of the
accused in section 42 of the Constitution include right to be presumed innocent
until proven guilty, the right to be taken to a competent court of law, right
to a fair trial, and right to bail.
The media tend to forget that the
Constitution provides for rights for both these sets—the alleged wrong-doer (accused)
and the wronged victim. This should be understood since the media are there to
serve public interest, and so often stand on the side of the victim, and often,
victims are the poor unfortunate villager with little or no education at all.
In some way, the media approach resembles that by the state, since in criminal
law, the state (republic) stands on behalf of the victim (and this is why in
criminal law the victim is represented by the Republic, and that such a case
carries the tag ‘The Republic/Regina versus the accused). And where the media
miss it is that the court does not represent the victim; the court is an
independent referee or independent arbiter or independent tribunal, i.e.
ensuring the substantive law (law that defines the said crime) as well as
procedural law (law laying down procedures for a fair trial in that crime) is
followed, assessing the evidence tendered, and then arriving at a judgment
received and appreciated by all. If the court were siding with the victim, then
the court would be prosecuting yet it is the state that prosecutes (i.e.
appears and argues on behalf of the victim to secure conviction against the
accused).
During the one-party era when Malawi
had a single ‘public’ radio and almost a single newspaper outlet in the names
of Malawi News and The Daily Times, trial by media was part
and parcel of reporting; any person (even poor illiterate villagers with no
connection to politics) arrested on allegations of having committed treason, wore
one label—chigawenga—a vernacular
term akin to those involved in a revolution and coup de tat. Even writers were
branded chigawenga merely for
expressing their minds on paper. The situation was always made worse by the
fact that everyone listened to the same radio and read the same newspapers. As
a result, the court of public opinion always came to a conclusion on the sort
of punishment deserving a chigawenga.
In such trials, traditional chiefs would be dozing half the time, yet, at the
end of the ‘trial’, they always arrived at the same verdict as those ‘alive’.
Our history plus the elite advantage
the media have over those who do not control the flow of information, the
nature of criteria followed by the media to arrive at a material for news, lack
of knowledge on the need for a fair trial, should be reasons to entreat us all
to exercise some control as far as reporting crime is concerned lest we should
influence others in ‘criminalising’ suspects.
More Reporting than Journalism and why this should be a cause for concern
One problem with news readership or
viewership in Malawi today is that the majority of our audience choose to
deprive themselves of critical thinking, that crucial component in the
interpretation of news. And, as argues Murdock (1997) cited in Yvonne Jewkes
(2004), the danger with this (i.e. a population deprived of critical thinking)
is the passing of a literate culture which could enhance higher level thinking.
Murdock and others bemoan the replacement of this literate culture by a “visual
popular culture believed to plug directly into the mind without need for
rational thought or interpretation” (p 6). And interpretation here should mean,
(T)he deeper sense of news. (That which) places a
particular event in the larger flow of events. It includes the colour, the
atmosphere, the human element that gives meaning to fact. It is setting and
sequence, but above all, significance. It is not opinion (which normally makes
an argument for one position, urges a course of action, favours one side
against another). Interpretation or analysis presents the facts, and their
meaning, taking the reader a step further. (Evan Hill and John J Breen (1979). Reporting and Writing the News. New
Jersey: Little Brown and Company, p 161).
The absence of critical thinking or
the art of interpreting news poses a greater threat today, because we are
living in a world where everything appears and disappears so fast, where the people
do not have time to sift through news for that truth. In the world of news of
today, everyone wants ‘take-away’ news, packaged for the brain to eat straight;
no wonder, they absorb without questions what they are given without asking.
Reporting has always differed from
journalism in that the latter tends to involve a higher sense of judgment on
what to accept as news (newsworthiness), how to put it and where and even when.
In other words, critical to journalism is the art of sifting through raw news,
understanding legal consequences and implications of news content, the question
of taste, and the role of ethics in it all, et cetera. What all this means is
that today, most people are eating straight from reporting, and with the
expansion and proliferation of media channels and outlets plus the general
inability to distinguish entertainment from information, the danger of a docile
audience to absorb what has come to be described as fake news is very high.
In stories involving crime, this can
even be worse, taking into account our culture that does not intensify general
legal education so the people are equipped with at least the basics of law. It
is important to note that low level of this knowledge does not help things at
all, because the language of suspicion and allegation disappears altogether for
‘guilty by the media’.
The people ought to be trained to learn to interpret news if we are to develop ourselves into a society of debaters.
The people ought to be trained to learn to interpret news if we are to develop ourselves into a society of debaters.
Trial by Media or Trial by Google, Freedom of the Press, and Right to a Fair
Trial
Is there such a thing as trial by
media, or it is another fictitious subject created by media critics, these
people, who, to quote Benjamin Disrael, find it much easier to be critical than
to be correct? Can the media influence public opinion? Of course, but can they
influence the independence of the court or outcome of cases?
The media can influence crime
investigation or progress of the case itself in a number of ways. For example,
by revealing particular information, the media can help the offender reorder
his ways and thus go scot-free even where a crime was committed. Again, by
disclosing some evidence or information, the media can influence witnesses to
change their stand or to embellish their testimony.
During the trial itself, the media
can also interfere with the right to a fair trial, for example, by presenting ‘facts’
that interfere with smooth administration of justice. A good example is what
happened during the double-murder trial of OJ Simpson in the US when KNBC-TV
reported erroneously that DNA tests showed that Nicole Brown’s blood was found
on one of Simpson’s socks. Superior Court Justice Lance Ito had to threaten to
bar them together with their cameras.
All this would make one appreciate
why there is a general ‘fear’ among court officers over ‘open’ media coverage whenever
a high profile criminal case is in progress. Perhaps that is the reason that there
in the United States, the Supreme Court in Sheppard
v Maxwell (1966) had advised the judiciary that it must take action to
protect an accused person’s right to a fair trial. Of course, the Court did not
impose a direct restraint upon the press. However, it warned that if Judges
fail to take action, such as insulating prospective witnesses from news media
or sequestering (putting away) the jury, then the conviction risked being
overturned.
The fact that the Supreme Court in Sheppard v Maxwell did not impose
restraint on the media demonstrates the Court’s unwillingness to give it all to
the accused. No wonder, a decade later in Nebraska
Press Association v Judge Stuart, the Supreme Court ruled that a judge
cannot prevent news media from reporting or commenting on public judicial
proceedings.
It should be stated here that open
court coverage which is part of open justice also known as open meeting or open
record law is fast becoming the norm especially in high profile court cases.
This is because the people are given the opportunity to see what actually
happens inside the court (educational purpose) and also witnessing justice
being done (transparency, openness, confidence and trust to the justice system).
In Kenya, for example, every element of the proceedings in an election dispute
case in the Supreme Court of Kenya at Nairobi, was before television (see the Kenya Supreme Court Presidential Election
Petition No 1 of 2017 between Raila Amolo Odinga (1st Petitioner)
Stephen Kalonzo Musyoka (2nd Petitioner) and Independent Electoral and
Boundaries Commission (1st Respondent); Chairperson, Independent Electoral and
Boundaries Commission (2nd Respondent); and HE Uhuru Muigai Kenyatta (3rd
Respondent). I personally witnessed the Nairobi proceedings from my house
in Zomba, Malawi through K24, a television station owned by Mediamax Ltd of
Uhuru Kenyatta. For the first time, I appreciated the power of open justice,
i.e. attempts to take court proceedings to the people for transparency and
accountability.
The Kenya landmark case was by no
means the first time a court in Africa had allowed open justice in the
proceedings. In South Africa, and this is according to the former South African
Deputy Chief Justice, Dikgang Moseneke, the Oscar Pistorius Trial had allowed
the country and the world into the South African Courts and into how the
country dispenses justice. According to the former Deputy Chief Justice, that
coverage put into practice the concept of ‘open justice’ where justice must not
only be done, it must be seen to be done.
The Oscar Pistorius Trial also
witnessed another important development in case law when, at the start of trial,
there appeared an important court case on a number of questions on which the
media were seeking interpretation of the courts on two rights clashing—freedom
of expression, and right to a fair trial. According to the Deputy Chief
Justice,
The questions were many and complex, but even more intriguing,
they were new to the judicial system. Should we let the reporters in: yes? With
more than their pens and little traditional note pads: yes? With their
smartphones, electronic notebooks and iPads? Or should we perhaps jam the
signal in the court houses? Why, then, shouldn’t we let the cameras in as well?
If we do, should the cameras relay to the world instantly or at all, everything
we say and do in court? Or should we rather have the cameras fixed on the judge
only?
Put simply, the question could never
be whether the media must be allowed to cover court proceedings; it was how
they would do that in order to inform the people the right way. The question
could never be whether they would be allowed because already they were doing so
through the social media or the traditional pen-and-note pad way.
In the end, the President of the
country’s Constitutional Court gave the media
organisations permission to broadcast the trial, i.e. Pistorius trial, live and
in full Technicolor. As usual, the media had gone in with the position that the
Court had to let them in unhindered because freedom of expression lies at the
heart of democracy. The Court however, balanced the two rights at stake
here—right to a fair trial for the accused, and freedom of expression. In
reaching the decision, the Judge did appreciate the importance of both rights,
and struck a balance between the two so there was no winner and no loser.
So what was the balance the Judge had struck here? Well, that
visual images of Mr Pistorius and his witnesses may be disabled when giving
their evidence. In other words, audio of those witnesses could be broadcast but
not the visual images. It was a different story however with the Kenya
Presidential Election case of 2017 where everything was laid bare to the world.
Generally, there appears a growing
trend towards allowing the media unhindered coverage of crime even in court
sessions themselves. In the UK, during the hearing for bail application in a
case involving Wikileaks founder
Julian Assange, the Judge permitted reporters to tweet in the courtroom. In
2011, the UK Supreme Court itself was to issue a formal direction permitting
“live text-based communications” such as email and social media (including
Twitter) in the courtroom, in order to better promote open justice. And this is
important: In doing so, the Lord Chief Justice urged the media: ‘Twitter as
much as you wish’. He soon corrected himself:
Now my law clerks tell me that it would have been more accurate
to say ‘Tweet as much as you wish’, but the message remains clear: delayed
information is as good as denied information. There is no reason not to, as a
default position, permit live tweeting and whatever else from the courtroom. There is no logic
in asking the media to step outside of the courtroom to press send.
In the United States, a number of
cases, for example, Bridges v California
(1941) have established that imposing direct restraint on the media by the
judiciary is unconstitutional except where there is a clear and present danger
to the administration of justice.
As for the issue of cameras in court
there, in Chandler v Florida (1981), the
Supreme Court ruled that “states can permit cameras in the courtroom provided
safeguards are taken.” By 1990, forty-five states in the US allowed such
coverage. (See William E Francois (1990) Mass
Media Law and Regulation, 5th Ed., Iowa State University Press, p 355.)
And what is the position in Malawi?
In The Republic Versus (Oswald Flywell Gideon) Lutepo, on the morning
of July 30, 2015, the Judge was greeted by a number of big
cameras, right inside the Court room, cameras directed at the Bench, the Bar
and the accused person. The Judge says these were sophisticated cameras that
were most probably from well-established media houses, all of them intent on
capturing the Court proceedings as they unfolded. Both parties to the
proceedings disagreed with this ‘invasion’ and the Judge ruled against it,
observing, that though section 60 of the Courts Act, and section 71(1)(a) of
the Criminal Procedure and Evidence Code provide for open court system, the
media could not just get in willy-nilly to do the coverage. The Judge observed:
In the
absence of such an application, and express leave of the Court, the media cannot
be allowed such access as they sought to get in these proceedings. The open
justice principle does not confer an unlimited right on the public. Even from
the terms of Section 60 of the Courts Act and Section 71(1)(a) of the Criminal
Procedure and Evidence Code, it is clear that such right is limitable and
indeed limited.
I am not saying that the Court
refused the media such coverage, for if they had approached the Court in the
first place, and the merit of the same assessed in line with the interests of
the rights of the accused, they could as well be allowed to. Put simply, the
court is a neutral entity to ensure rules are observed, and from what it is
given, make assessment and arrive at a fair verdict.
The media too are supposed to be a
neutral entity, and so should have been approaching all issues involving
coverage of crime the same way the court does. Unfortunately, our world being
skewed as it is, the media can ‘prosecute’ (on the behalf of public) or even ‘defend’
(on the behalf of the accused).
Famous examples on trial by media
Often, trial by media is either
pro-accused or anti-accused. However, the position of the media should always
be a balance between the interests of justice, i.e. right to a fair trial, and
the right of the public to know.
Trial by media can be pro-accused where
the media may portray the accused as a victim of, say, political witch-hunt for
his or her bold stand against some bad policy or bad acts by those in power, et
cetera. Trial by media can also benefit the accused in that too much coverage
can end up creating more sympathy among fans for a particular iconic figure
suspected of committing a crime.
There are so many examples of court
cases in which the media has tended to side with the accused.
Sometimes the media or the people
working in the media can get blinded by the power of celebrity and report the
news in a manner sympathetic to the high-profile figure. In 2003, following the
arrest of Michael Jackson on accusations of child molestation involving a
12-year-old boy, one analyst, Leonard Pitts Jr in “Michael Jackson and the
power of blinding celebrity”, argued that it would be easy for his fans to feel
angry and sad about the news their star, a person who had become famous right
at 11, and the biggest star on Earth at 24, had been arrested on such charges.
Pitts Jr attributes this to the power of celebrities in blinding people to
‘forgive them’ at the expense of the crime.
The same could also be said of the
recent Bill (William Henry) Cosby sexual assault trial in the United States. In
June this year, following an announcement of a mistrial (by the Judge) after
the jurors had failed to reach a verdict following a 52-hour deliberation, lawyer
Gloria Allred said, “We can never overestimate the power of blinding power of
celebrity” (See “Cosby Accusers, Family React to Mistrial Announcement” by
Patrick Shanley, available at www.hollywoodreporter.com, posted 8:04 am, June 17, 2017
accessed July 27, 2017). Allred was representing a number of Bill Cosby
accusers (60 of them) in the sexual-assault trial.
What this was suggesting was that
Cosby, being a personality he is, author, musician, a popular stand-up
comedian, or someone who has made America happy and laugh, might have made for
himself a huge investment of friendship and sympathy, and that the same does
have some influence on jurors.
Sometimes, the media could be acting
on public pressure. Sometimes I wonder how easy it was to report on a case like
that of the Indian guru Gurmeet Ram Rahim Singh, a 50-year old holy man and
leader of the Dera Sacha Sauda sect recently sentenced to twenty years on a
conviction of rape. The sect has a following of over 60 million, i.e. over
three times the population of Malawi. According to the BBC (see “India guru
rape: Gurmeet Ram Rahim Singh jailed for 20 years” at www.bbc.com) violence that followed the verdict
in Panchkula in Haryana state killed some 38 people.
The media are often at home vilifying
an accused of high status or a celebrity or a ‘personality’. In other words, a similar
crime if committed by a celebrity or a high-status person will attract more
attention than it would if it were committed by an ‘ordinary’ person. Perhaps
at this point one reads sense in the words of Professor Marcel Danesi (who used
the story of OJ Simpson) when commenting on why the public is always eager and
quick to convict a known personality outside courtrooms:
He was a hero, but as soon as a hero in any way
becomes besmirched in the public arena, just as in ancient Greece and Rome,
then you throw him to the lions . . . It doesn’t matter whether he’s innocent
or not, the opinion has come down, he’s off his pedestal, he’s down on the
ground, and people love to spit on fallen heroes. (“Trials of the famous can
distort Courts’ image”)
In Australia in 2014, lawyer for
Robert Hughes (former actor in Hey Dad)
observed that Mr Hughes was to appeal to a Sydney court’s guilty verdict on a
number of sexual assault charges because, “Hughes could not get a fair trial
due to the level of adverse media coverage he faced in the lead up to the
trial” (See Greg Barns “Fair Trials at risk in age of social media” available
on www.abc.net posted on Thursday, April 10, 2014 accessed July 10, 2017).
According to Barns, the first
allegations against Hughes was made in 2010, and in 2012 after Hughes was
arrested, Monahan congratulated on her twitter the team that had made the
arrested as ‘guys who rock’, and all this was reported in The Daily Telegraph. The same newspaper is also said to have quoted
the man who had headed the investigation as saying that ‘sexual assault leaves
enormous scars on people’ as though it was already established outside the
formal court setting that the said sexual assault had indeed occurred.
It should be pointed out that the
attraction and attention created by famous people can itself be a threat to a
fair trial. Still there in Australia, in July this year, Cardinal George Pell,
76, arrived there to defend himself against allegations of multiple sexual
assaults, and according to the BBC, (See “Cardinal Pell arrives at court to
face assault charges” dated July 26, 2010 available at www.bbc.com accessed July, 2017), the Vatican
Treasurer and so the third-ranking official in the Catholic Church, entered the
court amidst unprecedented publicity. The article observes that “Rarely has an
Australian court been besieged by such a large media contingent, with their
satellite trucks and coverage taking the story all over the world.” Whether
such coverage on an unprecedented scale can have ramifications on fair trial is
the question. However, the wide publicity is good news as far as freedom of
expression and the concept of open justice are concerned.
Courts often apply the bulwark of
contempt of court to deal with issues of trial by media, but this often applies
when proceedings are ‘active’, meaning, it would be impossible for the court to
execute it in pre-trial settings.
Another explanation for media frenzy
when the trial involves a famous person could merely be revenge. For example, in
the UK the media were hard on “Lord Archer, who had previously successfully
sued a tabloid newspaper for libel (and after the trial had to pay back the
damages he had won)” (Jewkes, p 50). One would equate this to politics where an
‘enemy’ on the wrong side of the law becomes a fair game.
In Malawi, in the high profile
corruption case involving Oswald Lutepo, the media sided with the people, in
ensuring Lutepo was taken to book for his involvement in corruption. This was
understood though no one took time to seriously remind themselves that Lutepo
was merely a conduit (recruited by Pika Manondo) in a well-protected thieving
system involving highly and strategically placed persons. In fact, the lamentation
of the Judge in this case, speaks volumes:
If
indeed it be proven that such highly placed politicians were the ultimate
masterminds of this plunder of State resources and primarily so for purposes of
“cash-rolling” a political campaign, this would represent a major governance
catastrophe that befell this nation. It would entail that such politicians
thought that the best way to garner the sustained trust of the people of Malawi
in order to gain or remain in power, was to fundamentally breach the very trust
those people had reposed in them in the first place.
This entails one thing in the context
of fight against corruption—in the corruption sea in Malawi, there are no big
fishes, or how else can one justify the fact that Lutepo, an invited guest to
the thieving cult, a novice and perhaps without the thieving experience, was the
sacrificed link for the sins of many? Put simply, Lutepo’s loot of nearly
K400,000,000 was just a commission, a 10% commission of the loot those
entrusted with State resources had engaged in stealing. Sometimes I feel like
justice failed us in that we sacrificed the weaker Lutepo yet great
beneficiaries are eating and drinking under hotel chandeliers as we speak.
It should also be pointed out that
one other reason trials involving high-profile figures generate a lot of
interest comes from the fact that “when celebrities are on trial, the public’s
skepticism of our justice system reaches its peak” (Jacques Gallant “Trials of
the Famous can Distort Courts’ Image” available at www.thestar.com, posted May 23, 2016 accessed July
10, 2017). People don’t just believe that the courts can approach powerful
people with the same boldness they do when it’s a case involving some poor
unfortunate villager.
Is there trial by the media in Malawi?
In Malawi, this is a very difficult
question to answer especially after one considers the fact that the trial of
the century in Malawi, one which received some of the highest reporting akin to
a finding of guilty by court of public opinion, ended up being dismissed for
lack of evidence. In this case, Mwanza
Murder Trial (MSCA Criminal Appeal No 21 of 1995, being High Court Criminal
Court No 1 of 1995), Dr Hastings Kamuzu Banda (the former Head of State in the
one party Malawi) together with Mr John Zenus Ungapake Tembo, Mr Augustino
Laston Likaomba, Mr MacDonald Moses Kalemba, Mr McWilliam Lunguzi and Miss
Cecilia Tamanda Kadzamira were being accused of master-minding the bludgeoning in
1983 of three senior Ministers and one Member of Parliament. At the time of the
trial, Dr Banda (and his Malawi Congress Party) had just lost his grip to power
(in the 1994 first multiparty Presidential Elections the other side of the 1966
single party Constitution), having been at the helm from 1964 during which
period, it is believed, 6,000 more Malawians were murdered (see “Despotism on
Trial in Malawi” by Robert I Rotberg, May 9, 1995 available at www.csmonitor.com accessed July 26, 2017).
In Malawi, there are many people who
do not share the position of the Court on this matter, i.e. that the Supreme
Court sided with the findings of the Jury in the High Court. Thus, the outcome
of the Mwanza Trial has been condemned by many including Jack Mapanje as a
failure of justice. It must be stated here however that as far as criminal law
is concerned, the court of law goes for proof beyond a reasonable doubt (though
this should not be confused with proof beyond a shadow of doubt, for then, it
would be impossible to secure conviction).
Reporting on the matter then,
including language from the podium, was one of guilt, and that the Court was
never influenced at all is a great measure of the independence of our courts.
However, it should be pointed out
that events on the ground have tended to show that the media does have a
position on court issues, and one case that proves that the media do indeed
have a position is Mwaungulu v Malawi
News and Others [1994] MLR 227 HC.
Far back in 1994 when Dunstain Fipamutima
Mwaungulu (now Supreme Court Justice) was working as Registrar of High Court of
Malawi and Supreme Court of Malawi, Malawi
News (dated 12-18 March, 1994) under the Zebedee column published a story
in which it said Mr Mwaungulu was awarding excessive sums of money to people
from the Northern Region. The contents were suggesting that Mr Mwaungulu was
practicing nepostism in the manner he was executing his duties. In reaction to
this, Mr Mwaungulu had first sought formal apology from the newspaper, which it
did though it fell short of the requirements of a true apology. When Mr
Mwaungulu commenced a court action, the respondent (Malawi News and Others) did not defend itself. This was kind of
accepting wrong. In such a case, the plaintiff (one seeking relief or help of the
court) asks the court to give him default judgment, i.e. judgment in a context
where the person who was supposed to defend himself hasn’t and therefore entail
his acceptance of ‘wrong doing’. And the Judge made the following judgment on
behalf of the Plaintiff (Mr Mwaungulu):
I would proceed to do so. I would award the plaintiff K12,000.00 as
compensatory damages. This amount is not sufficient to punish the defendants
for injury done to the plaintiff’s feelings and sense of pride and dignity. I
would grant K13,000.00 as purely punitive damages. The plaintiff is granted a
total of K25,000.00 damages being both compensatory and exemplary. He is
entitled to the costs of these proceedings.
This was 1994 and K25,000 was quite
some money. I remember when I started work in 1995 as a secondary teacher I was
receiving something like K1,000.00, meaning I would have to work for some two
years to earn that.
Well, I wish to stress that the media
does have a position. In short, the columnist had his own perception of how he
wanted award of damages to go about; fortunately, law applies stringent or
rigorous standards to arrive at a decision.
Put simply, there are elements of
media trial in Malawi but that evidence on the ground does not suggest that
does influence court outcomes. One reason for this could be that in Malawi, in 2009
or thereabout, the Malawi Government put aside the use of the jury system in
murder trials owing to a number of reasons among which that it was too
expensive and that most of those appointed to serve there were so insufficient
of the right knowledge to follow the proceedings that they ended up passing a
verdict of guilty where it should have been otherwise. In this case, there
should be little worry over whether Judges in Malawi can get swept out by the
flood of public opinion through the media in a courtroom of the media. However,
I still feel that we should still be wary where the media present the news in
such a way that all the people can see in the accused is guilt. When a person
is undergoing a formal court trial and the people bay for his or her blood,
stoning and showering insults at the same, we must be wary over whether this
cannot affect the perception of the accused over our claim of the need for a
fair trial as provides the Constitution.
Sometimes I get a feeling that many
people think that the moment someone is arrested then all is gone for him or
her, and that what is next in that setting is jail. This, I think, springs from
deliberate disregard of issues of defence in criminal law. I think I should say
one or two things on this in passing.
Defences in Criminal Law
Well, in criminal law, a crime
committed can be negatived, i.e. made as though it was not committed by what
are described as defences. In other
words, if a crime was committed, but you have a defence that the court will
accept as plausible and reasonable, you escape punishment. Defences include
self-defence; insanity; provocation; duress; entrapment; marital coercion;
consent; diminished responsibility; intoxication; and necessity.
It is important to observe that every
defence will be acceptable depending on the context as prescribes the Criminal
Procedure and Evidence Code (Cap 8:01 of the Laws of Malawi) and other Laws. In
other words, every defence will have a test, and if it fails to fulfill that
test, it won’t be a defence at all though one would claim it to amount to such
a defence. I should give a small example on consent and the crime of rape in
Malawi.
On consent as defence in Malawi, if
one sleeps with a woman with her consent,
he can never be accused of rape. However, if that woman or girl consents not
out of free will, then that defence of consent fails outright. On this, section
132 of the Penal Code (Cap. 7:01 of the Laws of Malawi) provides thus:
Any person who has
unlawful carnal knowledge of a woman or girl, without her consent, or with
her consent if the consent is obtained by force or means of intimidation of any
kind, or by fear of bodily harm, or by means of false representations as to the
nature of the act, or in the case of a married woman, by personating her
husband, shall be guilty of the felony termed rape.
So, the test here would be: Was there
consent? Yes. Was it obtained through force, et cetera? Yes. Then it was no
consent at all, and so the defence fails.
During the JB administration, the
Government was said to have involved is selling of a jet and procuring of arms.
People went out to accuse JB of going it alone without necessarily taking into
account the tense context in which the nation was, i.e. the Lake Malawi
boundary question. I have backed the JB administration on defence of necessity.
According to “Defence of Necessity”
(see www.e-law-resources.co.uk/Defence-of-Necessity
accessed July 9,
2017), “the defence of necessity in criminal law is where the defendant is
arguing that it was necessary for them to commit a crime.” The article gives an
example of a prisoner inside a prison building that is burning and the choice
he faces on whether to die there or to escape the building. If he escapes the
building he will commit a crime, but if he ‘chooses’ to obey this law, he
chooses to lose his life at the expense of pleasing the law. Common sense would
tell anyone the best choice here is for him to escape the building so long as
he does not disappear for good.
The defence of necessity must pass
three or four tests. The first test is whether what was done had to be done to
avoid inevitable and irreparable evil. The second test is whether something
else could have been done to achieve the result better. And the last test is
whether the wrong committed or harm resulting from that crime was too much
compared to the act itself, or simply whether the crime committed in the name
of necessity wasn’t bigger than the crime one would commit if he didn’t do anything
about the situation. Perhaps I should put the last point in monetary terms: if
by committing a crime in the name of necessity you spent K20 billion yet if you
had let things happen as they were the loss could have been only K2 billion,
you can never invoke necessity.
Put simply, if the danger was such
that if you could not do something else you could lose everything, the result
could be too much on the people, a person can be justified to commit a crime.
Second, if one could use an alternative and arrive at the same answer, then
there could be no reason or need to commit that crime.
Even in law of tort (nuisance private
law), one can find elements of necessity. For example, where a danger
encroaches into your yard (if you have interest in the land or a legal right of
occupation greater than that of a mere occupier or licensee) and you know it
can cause harm or it interferes with your right, law allows you to abate by
cutting the encroaching tree, but of course, having first fulfilled some
preconditions—first, that you gave notice to the neighbour; second that in
doing so, you do not cause damage to the neighbour’s property; and third, that
where there are more than one way of abating or removing or reducing the
impact, you chose the method with the least cost to the defendant.
The defence of necessity is also
often invoked in cases bordering on high medical decisions, for example, where doctors
risk it by conducting an operation on conjoined twins in an attempt to bring a
decent life to them (and in the course something happens).
Similarly, when some people are
advocating for legislation to force mandatory HIV testing for couples, the
basis is necessity—private will should be ‘suppressed’ for the good of the
child and the country’s future and society.
The article “Defence of Necessity”
however warns: “The defence of necessity can only be pleaded in extreme
circumstances and is often unsuccessful.” Besides, it is very rarely raised in
murder cases.
In Malawi, the most important question
on the doctrine or defence of necessity was considered by the Supreme Court The Attorney General v The Malawi Congress
Party and LJ Chimango and HM Ntaba, (MSCA Civil Appeal Case No 22 of 1996,
being High Court Civil Cause No 2074 of 1995) also known as the Press Trust Case. In this case, although
the legislature had passed a piece of legislation on Press Trust without the
stipulated quorum, the Court held it to be valid because it was necessary to go
ahead with it even without the required number of Members of Parliament as
stipulates section 27 of the Malawi Parliament Standing Orders. The Court said:
We also believe
that this doctrine (of necessity) should be applied or invoked in the present
circumstances to avoid creating a legislative vacuum. Our Constitution is
designed in such a way as to have a government in power which does not command
a majority in the National Assembly. In
any event, if we construe the Constitution strictly, no government would be
able to function properly, and this would be to the detriment of the nation as
a whole. (emphasis mine)
For instance,
if more than two thirds of the Members of Parliament were consistently to
ignore the summons given by the Speaker of the National Assembly, such an
occurrence would incapacitate the government in power from passing legislation
which is the primary function of the legislature. Again, this would justify the invocation of the doctrine of necessity
by the Courts to prevent a vacuum being created by crippling the legislative
branch of government. (emphasis mine)
When one considers the role the media
can play in influencing trial direction, a number of questions arise: Is the
danger only when the trial has started? Is it the attention itself that
matters? Is it when the media are allowed in court with everything they have
including those HD cameras?
It would be a great idea to see our
courts opening more and more to the people through direct media coverage so
long as this does not prejudice the interests of justice. However, the words of
former South African Deputy Chief Justice Moseneke should ring some bell in us,
and we must plea with the media in Malawi the same way:
We ask (you the media) that in carrying out your
responsibilities, you worship at the altar of accuracy. . . In addition to
ensuring mistakes are not made, the media must also be careful not to
sensationalise cases and turn them into media circuses. For example, on 16
January 2012 a headline appeared in the Pretoria
News that read ‘Judge okays child sex’. A
very misleading headline, to say the least.
It must be remembered as observes
former Los Angeles Deputy District Attorney Vincent Bugliosi that “a trial is a
serious and solemn proceedings that determines whether a person’s liberty, and
sometime his life, should be taken away from him. ‘Anything that interferes, or
even has the slightest potential of interfering, with the resolution of this
determination should be automatically prohibited’” (Ted White, p 386).
But still, “these concerns are not enough to warrant closing the courtroom
doors to reporters and cameras” (p 34).
In short, everything will depend on context and nature of trial
after the Judge weighs and balances various interests including that of
justice, and that of the accused’s right to a fair trial. This is why we talk
of striking a balance.
Conclusion
The media are an important component
of our democracy. Our democracy will mean nothing if we develop a habit of
dishing out stringent rules to restrict the way the media should operate.
However, the media must carefully sift through issues before applying the
criteria for newsworthiness, and the reason is simple: trial by media
jeopardises the right to a fair trial of the accused and with it the formal
justice system, especially that presumption of innocence until proven guilty by
a competent tribunal. In this way, I think, the question of open justice should
not be an excuse where the right to a fair trial is seriously under jeopardy.
Let there be some healthy balance.
References
The Attorney General v The Malawi Congress Party and LJ Chimango and HM
Ntaba, [MSCA Civil
Appeal Case No 22 of 1996, being High Court Civil Cause No 2074 of 1995] also
known as the Press Trust Case
The Republic versus (Oswald Flywell Gideon) Lutepo, Criminal Cause No 02 of 2014.
Mwaungulu v Malawi News and Others [1994] MLR 227 HC.
Baran, Stanley J. (2009). Introduction to Mass Communication: Media
Literacy and Culture, Boston: MacGraw-Hill.
Francois, William F. (1990) Mass Media Law and Regulation, 5th
Ed., Iowa State University Press.
Gallant, Jacques, “Trials of the
Famous can Distort Courts’ Image” available at www.thestar.com, posted May 23, 2016 accessed July
10, 2017.
Hill, Evan and Breen, John J (1979). Reporting and Writing the News. New
Jersey: Little Brown and Company
“India guru rape: Gurmeet Ram Rahim
Singh jailed for 20 years” Available at www.bbc.com
accessed 4 September, 2017.
Jewkes, Yvonne (2004). Media and Crime: Key Approaches to
Criminology. London: SAGE Publications Ltd.
Molina, Joshua “How the Mainstream
Press Affected the Outcomes of Three High-Profile Criminal Cases” posted
December 5, 2011, available at www.osmosis-online.com accessed July 10, 2017.
Orlik, Peter B (2001). Electronic Media Criticism: Applied
Perspectives. New Jersey: Lawrence Erlbaum Associates, Inc.
Rotberg, Robert I (1995) “Despotism
on Trial in Malawi” posted May 9, 1995 available at www.csmonitor.com accessed July 26, 2017.
Spark, David (1999) Investigative Reporting: A Study in
Technique. Oxford: Focal Press
Shanley, Patrick, “Cosby Accusers,
Family React to Mistrial Announcement” available at www.hollywoodreporter.com, posted 8:04 am, June 17, 2017 accessed July 27,
2017.
White, Ted (2002) Broadcasting News Writing, Reporting, and
Producing (3rd Ed). Boston: Focal Press.
