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Media Trial versus Fair Trial

Teslim Oyetunji

The right of an accused person to fair trial forms the fulcrum of the Nigerian Criminal Justice System.

The accused person’s right to be presumed innocent until proven guilty in a competent court of law, his right to remain silent both at the point of arrest and during the course of his trial, his right to a fair and adequate representation and his right to fair hearing are all legal safeguards put in place by the Nigerian Constitution to ensure that at the end of every criminal justice process, justice is not only served but seen to be served.

But Justice is not for the accused alone. In the famous case of Godwin Josiah V. State Sc.59/1984, Late Justice Chukwudifu Oputa stated quite lucidly that; Justice is not a one-way traffic, it is really a three-way traffic: Justice for the appellant accused of the heinous crime, Justice for the victim, the murdered man, and justice for the society whose laws have been broken.

However, recent technological advancement in media and telecommunication has threatened to tilt the balance of this three-way traffic unfairly against the accused person.

The rule of “Sub Judice” which seeks to prevent public/media trial of an on-going case has never been so difficult to enforce as now.

In an era, replete with fake news peddled across social media platforms such as; WhatsApp, Facebook, Telegram, tik tok etc. the task of preventing pretrial conviction of the accused person to the prejudice of his constitutional right of presumption of innocence and fair trial has never been more daunting.

Coming home to Nigeria, the menace of media trial in recent years has been especially acute. Security agencies regularly parade arrested suspects before the media labeled as apprehended criminals.

Photographs of suspects in handcuffs are taken and splashed all over the print media with loaded captions aimed at suggesting the guilt and culpability of arrested suspects even before they are arraigned in court.

The problem presents two scenarios; media publicity done at the point of arrest during investigation before arraignment and the publicity done during ongoing trials of accused persons. The latter can amount to contempt of court.

However, while it used to be possible to seek and obtain injunctions against one or two media houses seeking to publish harmful materials that may prejudice an accused person’s right to fair trial as was the case in the famous English case of Attorney General V. Daily Times All ER, 1973.

The deregulation of public media space due to the advent of social media and internet has nonetheless made it almost intractable to control the release and circulation of prejudicial print material detrimental to an accused person standing trial.

This condemnable practice has become somewhat an acceptable standard amongst some agencies.

The aim appears to be a self-serving attempt at scoring cheap political accolade in contrast to serving the ultimate end of justice and nowhere has this worrisome trend being more accentuated than in public corruption and graft cases against prominent public figures and office holders.

The Economic and Financial Crimes Commission is a special body invested with special powers to investigate and try financial crimes in Nigeria.

Recently, it came under heavy flak for engaging in and encouraging the media trial of suspects.  While answering questions bothering on trial of suspects during his screening at the Senate Legislative Hearing for the confirmation of the EFCC Chairman in February 2021, the EFCC Chairman, Abdul Rasheed Bawa referred to Section 5n of the EFCC establishment Act, wherein it is stated that the commission has the responsibilities of “carrying out and sustaining rigorous public and enlightenment campaign against economic and financial crimes within and out Nigeria”.

However the law did not intent the media trial of persons under investigation as the courts have shown.

Recently, Hon. Justice Gabriel Kolawole of the Federal High Court in Abuja was forced to suspend hearing in a trial of a case involving a serving Colonel Nicholas Arinze and four others as a result of false media publication by EFCC alleging that the accused was charged with N36.8bn public fund diversion in an on-going trial, the accused person was charged with N1.5bn public fund diversion.

In the case of Shehu Sani and the EFCC also, the court threatened to strike out EFCC’s case over media trial.

Following an application by Sani’s lawyer that the EFCC misrepresented the proceedings of the court in a publication it made on its Twitter handle. Justice Ekwo said he would not hesitate to throw out the case should EFCC further misrepresent the proceedings of the court through media trial.

In his words, ‘The court of public opinion is not a court of coordinate jurisdiction. It is this court that has the last say at the end of this matter. Not the court of public opinion’.

In the golden words of Lord Hardwicke LC in English case of: The St. James’s Evening post where there had been gross abuse of litigants he said (1742)2ATK at 469; “Nothing is more incumbent upon courts of justice, than to preserve their proceeding from being misrepresented; nor is there anything of more pernicious consequences, than to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard.”

There cannot be anything of greater consequences, than to keep the streams of justice pure and pristine, that parties may proceed with safety both to themselves and their characters.

There is a difference between fair comment and words which seeks to directly interfere with the fair trial of an action and/or words or conduct which may affect the minds of a litigant. Comment likely to affect the minds of witnesses and of the tribunal must be stopped for otherwise the trial may well be unfair.  

But regardless of the fluid and blurry lines between comments which qualifies as fair comments (information which the public ought to have) and publications which seeks to directly interfere with administration of justice or prejudice the mind of the judex or witnesses against the accused person, it is fair to say that the responsibility of anti-corruption sensitization ought not lie in the hands of a prosecutorial and investigative out-fit like the EFCC.

Much of EFCC media releases have been suggestively aimed at self-glorification which seeks to trumpet the agencies inchoate gains in interim injunctions obtained for temporary forfeiture of assets among other things.

At the beginning of most anti-corruption trial prosecuted by EFCC, there is often so much media blitz which fizzles quickly out as the trial tampers down to real business.

While it can hardly be argued that ongoing trials can be effectively kept completely out of the media, the responsibility of anti-corruption media sensitization should not lie with prosecutorial and investigative agencies like EFFC.

Although the Chairman of the EFCC has consistently denied the complicity of the agency in media releases inimical to the right of fair hearing of an accused person in ongoing or yet to be charged cases, not sharing information at all in pre-trial and on-going trials appears to be a better option as information not put out there can’t be abused in the first place.

Certainly, the gravity or seriousness of an offence does not diminish the amount of constitutional safe guard an accused person is entitled to.

Hence, regardless of weight of charges against an accused person, an accused should still be entitled to his right to be presumed innocence until proven guilty by a tribunal or court of competent jurisdiction.

Teslim Oyetunji is a legal practitioner based in Kaduna.

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