By Richard Akinnola
My first emotional instinct as an activist when l read the document of the Federal High court, limiting the number of media houses that would cover Kanu’s trial to ten, was to be livid. While such directive could have emanated from the DSS to the FHC, a possible case of the hand of Esau and the voice of Jacob, it makes it difficult for me to frontally attack the DSS, since the document emanated from the court.
However, since the document emanated from the court, my hands are tied, hence it’s difficult to fault such a directive in view of certain constitutional restrictions.
Let’s look at certain constitutional provisions which a court can latch on in this type of circumstance.
Section 36(1) of the 1999 constitution (as amended):
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure it’s independence and impartiality.
(3) The proceedings of a court or the proceedings of any tribunal to the matters mentioned in subsection (1) of this section including the announcement of the decisions of the court or tribunal shall be held in public.”
Then, sub-section (4)(a) reads:
(4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal Provided that –
(a) a court or such a tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners In the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special
circumstances in which publicity would be contrary to the interests of justice.”
While l don’t see any big deal or major security implications in the Kanu trial, which has been hyped by the authorities, the fact that he faces treasonable felony charges, may make the authorities hide under this provision to prevent full media trial. This, of course, has its own down side because it goes to the credibility of the trial.
This provision of the constitution also puts restriction on the coverage of minors and some other sets of people depending on the circumstances.
It should be noted, however, that this restriction is limited and not at the whims of the Judge who may decide to blackout judicial coverage of certain proceedings. It is a decision that has to be used judiciously, not whimsically and capriciously as we saw today.
In the words of Lord Denning, in an address to High Court Journalists Association reported in “The Times” of December 3, 1964:
“Justice has no place in darkness and secrecy. When a Judge sits on a case, he himself is on trial… If there is any misconduct on his part and bias or prejudice, there is a reporter to keep an eye on him.”
Similarly, Lord Widgery had also stated: “Today, as everybody knows, the great body of the British public get their news of how justice is administered through the press or other mass media and the presence or absence of the press is a vital factor in deciding whether a particular hearing was or was not in open court. I find it difficult to imagine a case which can be said to be held publicly if the press have been actively excluded”.
In view of the foregoing therefore, it would be wrong for any Judge to keep reporters out of court or stop them from covering judicial proceedings, as Lord Parker, Lord CJ said while speaking on the Criminal Justice Bill of 1967.
He said: “Unless there are compelling reasons to the contrary, any judicial proceeding should be conducted in the full glare of publicity”.
Finally, in his book, “Road to Justice”, Lord Denning posited:
“In every court in England, you will, l believe, find a newspaper reporter…He notes all that goes on and makes a fair and accurate report of it…he is I verily believe, the watchdog of justice…The judge would be careful to see that the trial is fairly and properly conducted if he realises that any unfairness or impropriety on his part will be noted by those in court and may be more conscious to give a correct decision if he knows that his reasons must justify themselves at the Bar of public opinion.”
• Akinnola is a lawyer and human rights activist.