The symbiotic relationship between the legal profession and the media, otherwise fondly, referred to as “The fourth Estate of the Realm” was put to test recently, precisely last week, the 18th of March 2008 when a magistrate, Miss Ari Tobi, presiding in one of the Magisterial districts in Lagos, barred journalist from covering the proceedings in the hearing of criminal allegations of conspiracy and threat to life of the president, Nigeria guild of editors, Mr. Gbenga Adefaye.
The above incident has attracted quite a handful of comments from both the legal profession and the general public. It is in this light that a critical examination of the said order of the Magistrate against the back drop of the law has become imperative.
Criminal trial no doubt occupies a pride of place in our jurisprudence so much so that the Constitution provides for the platform upon which the proceedings shall be conducted. Section 36(4) of the 1999 constitution of the Federal Republic of Nigeria provides “whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable line by a court or tribunal”. The said section however contains a provision to the effect that the obligation to conduct a criminal trial in public may be excused where:
(a) The interests of defence, public order, public safety, public morality, welfare of persons who have not attained the age of 18th years, the protection of the private lives of the parties or any special circumstances in which publicity would be contrary to the interest of the justice.
(b) where the Minister satisfies the court that for reasons of public interest , it is expedient to prevent public disclosure of evidence in the matter, in which case, proceedings may be conducted in private.
Now. in juxtaposing the above with the order of Magistrate Tobi, question arises as to whether the order given to journalists by the said Magistrate not to cover proceedings involving one of their own as a complainant in a charge of conspiracy and threat to life, goes against the grain of constitutional rights provisions. While it is tempting to say from the outset that it is a violation of the fundamental right to fair hearings and freedom of expression to exclude a section of the public from reporting the proceedings of court,. however, a sober analysis of the rule of fair hearing suggests that any prejudging of issues whether of fact or law, in pending proceeding is, in principle, an interference with the right of fair hearing, and innocence constitutionally presumed in favour of the accused.
The point may be made that while the media enjoys the freedom to make fair comments on legal proceeding while reporting same for public consumption; such right inures mainly in respect of matters of national concern and should be balanced with the competing interests of the parties involved.
Now, the question is, can the covering of criminal proceedings by journalists in a matter involving the President of Nigeria Guild of Editors as a complainant occasion an adverse publicity which may prejudice the mind of the court and thereby occasion unfair hearing? In answering this poser, the famous bold statement of The American Bar Association following the extensive investigative journalism into the record and history of an alleged assassin of the late JF kennedy, in 1963, may be helpful:
“ what had taken place struck at the heart of fundamental rule of law with its guarantee of a fair trial for everyone, however heinous the crime involved. The widespread publicizing of oswad’s alleged guilt involving statements by officials, and public disclosure of the details of evidence would have made it extremely difficult to empanel an unprejudiced Jury and afford the accused a fair trial. It conceivably could have prevented any lawful trial of Oswald due to the difficulty of finding jurors who had not been prejudiced by there public statements.”
Having said the above, it is a notorious fact that journalists, in reporting events express their standpoints. Therefore, it is safe to say that it is a judicious exercise of judicial discretion for a magistrate to take a preventive measure to nip in the bud, a likelihood of adverse publicity of a matter which may in turn influence his public duty as a judge of law and fact, and thereby breach the golden principle of fair trial.
*CHRIS EDACHE AGBITI, ESQ.
