Trial by Facebook and Twitter poses ethical dilemma to judicial teams

In mid-December last year, a young man named Allan Wadi Okengo logged onto his Facebook account and started typing away.

In his misinformed state of mind, and probably thinking he could hide behind the thin veil of social media, the young man took his enthusiasm with the keyboard overboard, typing nasty things about the Kenya government and, particularly, the Presidency.

He then logged off and went about his business of attending university lectures and following the political debates on social and traditional media. Hundreds of kilometres away, a detective came across Mr Okengo’s posts and decided to rummage through his Facebook account.

There, he discovered that the 25-year-old orphan had been having a ball disparaging the character of the President, and immediately alerted his superiors.

Mr Okengo was immediately arrested, tried and handed a two-year jail term for his little excursion on Facebook.

That, however, was not before social media platforms erupted in a chorus of condemnation against his postings, some outrightly horrified by his “carelessness” and lack of “social media skills”.

A few months later, an aging woman named Margaret Ngima Gakoromo was jailed by an Embu court for ignoring an order over a land dispute that had been simmering since 1997.

Ms Gakoromo, who was pictured in newspapers wearing a prison uniform and looking awkwardly confused, had failed to raise a Sh100,000 bail for her release, and had spent about 10 days in jail when the media learnt of her ordeal and published it to the world.

Immediately, social media activists latched onto the story, condemning the country’s justice system and wondering how a woman that old — she was reported to be about 100 — could be jailed for her ignorance, and how a court of law could fine her the “colossal” sum of Sh100,000.

PUBLIC OUTRAGE

Those who live on social media — or Netizens, as they like to refer to themselves — kept on blogging about the tribulations of the old woman until Nairobi Senator Mike Mbuvi Sonko and Embu Governor Martin Wambora bailed her out.

So, a young man is herded to jail because of his posts on social media, and an aging woman is freed because of protestations on the same platform. What is happening here?

That is justice the social media way, explains lawyer Donald Rabala. And in that short explanation lies a major headache for the country’s judicial system: whether to turn a blind eye and deaf ear to the public, or whether to assimilate this new form of social justice within its ranks.

“Allan Wadi was first tried and convicted on social media,” says Mr Rabala, referring to the university student jailed for disparaging the character of President Uhuru Kenyatta.

“He was not a threat to anyone or himself and therefore a lighter sentence or community service with supervision would have sufficed, but because of the noise on social media, the young man had to serve as an example to the rest.”

Of course the legal fraternity would not readily admit that social media can influence how justice is served, but the murmurs on the streets indicate that the cries and tweets of a million people could rob one of a fair trial, or even prevent a victim from getting justice.

And because of the fair newness of this “threat”, there is hardly any localised literature on what the public and the legal fraternity thinks about it.

However, the International Bar Association (IBA) has investigated the threat and agrees that social media influence can sway a judge’s opinion when ruling on a case of immense public interest.

In 2011, IBA conducted a global study of social media’s intrusion into the legal profession and practice, and later documented guidelines to all its members on how they should use technology.

TRIAL BY FACEBOOK

In November last year, the Law Society of Kenya (LSK) released a statement reminding lawyers of proper use of social media. In an article posted on LSK’s website, the society’s CEO, Mr Apollo Mboya, was quoted as saying that there were increasing cases of lawyers committing “acts amounting to professional misconduct through postings on Facebook, Twitter and WhatsApp”.

LSK chair Eric Mutua told DN2 on the phone this week that the guidelines were yet to be “domesticated to have a binding effect in Kenya”.

Mr Mutua added that “even before that, legal professionals know that they are expected to adhere to them”.

It is, really, a complex situation: laymen in the public naturally want to see wrongdoers punished, but the courts and legal experts are careful not to let it become trial by Facebook or Twitter.

Even as they walk the tight rope, senior lawyers do not deny the love-hate relationship that social media have imposed on them. Mr Nani Mungai, senior partner at Muriu, Mungai and Company (MMC) Africa law firm, has tried high profile cases, including the petition against the last presidential elections.

Apart from the conservative LinkedIn, Nani is not on Twitter, Facebook, Instagram or WhatsApp. It was a deliberate choice, he says, informed more by his personality than his work.

“I am never tempted to go to the Internet to look at what the public says about my cases”, he says, explaining that “as you grow older in this career, you realise your only audience is the judge and the court who are interested in evidence, and not the public”.

Mr Mungai’s strength is called a “fade factor”, the idea that the media is less likely to affect the legal profession the further away it is from the actual trial, and he wishes he could say the same of his younger colleagues.

“I think they live in that world more than I do, so they are conflicted about a platform that relies solely on facts — that is the court — and the social media, which judge everything at face value.”

A young lawyer who sought anonymity says her best example of the effect of the media on justice would be the case of the young men who were arrested for attacking and undressing women in public last year. The videos that were shared of the assault, she says, enraged the public, leading to the charges against the young men being “compounded”.

“Add the #MyDressMyChoice crusade to that rage and you get the perfect ingredient to exert pressure on a judge or magistrate to hand a sentence that would not only shut people up, but also retain the public’s trust in the judicial system,” she says.

Lawyer Rabala agrees that social media played a crucial role in the conviction of the men, but explains that “there is a need to have a deterrence judgment sometimes, so that the same media are used to show potential criminals what would happen to them if they stripped women”.

EVIDENCE ALONE

A recent study in the UK — from where Kenyan law draws a lot of inspiration — found that jurors covering high-profile cases were most likely to remember what was reported in the mainstream and social media during trial. Even though Kenya does not try cases using the jury, this study sheds light into the palpable effect that social media have on the judicial system.

For human rights activists, Facebook and Twitter are tools to put pressure on a judicial system full of prosecutorial malpractice.

Ms Diana Okello, one of the founders of the #MyDressMyChoice campaign, says she credits the seriousness with which sexual violence against women is being handled in Kenya today to social media.

For the many purposes that they can be used, she says, Facebook and Twitter have particularly plugged the gaps that the legislative arm of the government has left open in protecting the civil and human rights of its citizens.

“On Twitter you meet both the prosecutor and the Member of Parliament who ought to defend our rights, and you ask them what they are doing about the cases taken to them,” she says.

It is through social media, Ms Diana adds, that cases of sexual violence that would have been silenced have come to the public domain and legal recourse sought.

“When helpless children or young women are raped and someone blogs it, lawyers and activists are likely to pressure the police to arrest the suspects,” she says.

Diana believes that through the medium, Kenyans have become enlightened and more litigious, and that belief is in line with what researchers have found in the relationship between social networking sites and their impact on offline life ever since 2008, when Barack Obama rallied his troops on social media to win the US presidency. By the time The Arab Spring started in Algeria, people were more willing to use social media as political and judicial tools.

Mr James Aggrey Mwamu, former East Africa Law Society chairman and council member of the Law Society of Kenya (LSK), agrees that the courts can weigh the opinion of the public in a trial, but is quick to point that while that is possible, judgment is always based on evidence alone.

He says that social media should only be a catalyst, not the determinant, in court cases since such forums have “a mob mentality similar to that on the street where a suspect is tried, judged and lynched by the loudest voice, not the most just”.

“Courts do not work like that,” he explains. “The very social media that praised Chief Justice Willy Mutunga for his judicial reforms wished him death after his court’s verdict on the presidential elections petition.”

Mr Mwamu says that judges must use the ‘Galileo Courage Factor’ — that is, stand their ground that the earth revolves around the sun and not the other way round — when making rulings because they have evidence and it does not matter whether that evidence is popular or not.

A national study conducted in 2013 in Australia reported that social media posed a threat to the country’s justice system. And over a 12-year period in the US, at least 90 verdicts were challenged due to “jury Internet misconduct”, resulting in 21 retrials or overturned verdicts in 2009 and 2010 alone.

CASES THAT DEFIED PUBLIC PRESSURE

Edward Kirui, 2012

Police officer Edward Kirui was acquitted on June 21, 2012 by Justice Fred Ochieng’ in a case in which he was accused of murdering protestor William Onyango during the 2007/8 post-election violence.

Even though the officer was caught on camera shooting at the protestors — the footage was aired on national and international TV stations — Justice Onyango said that ballistic evidence could not confirm that the gun that shot the protestor had been issued to Mr Kirui.

However, the judgment was silent on the second count of the murder of Mr Ishmael Chacha on January 16, 2008, and which formed the basis for a renewed trial that began last year.

Mr Kirui was set free on grounds that the bullet found in the body of one of the victims had been fired from a different gun from the one he was assigned. The State sought a Court of Appeal declaration that the acquittal arose from a mistrial.

“The trial involved points of law of exceptional public importance and the points should be weighed against public interest…” the court’s order read, terming the acquittal “a gross miscarriage of justice.

Tom Cholmondeley, 2009

There was outrage when Lord Delamere’s heir, Tom Cholmondeley, was sentenced to eight months in prison for killing stonemason Robert Njoya at his Soysambu ranch in 2009.

Before killing Njoya on April 19, 2005, Cholmondeley had been accused of shooting Samson Ole Sisina, a Kenya Wildlife Service game ranger who was conducting an undercover investigation into the illegal bush meat trade on the Delameres’ 19,000-hectare ranch in Naivasha.

Cholmondeley admitted killing Sisina but said he was acting in self-defense after being fired at first. During his trial for the second offence, tens of demonstrators waived placards written “Butcher of Naivasha” outside the court calling for a harsh sentence for Cholmondeley, and were disappointed with the eventual judgment.

Oscar Pistorius and the ‘Hard Truth’

That South African athlete Oscar Pistorius (above) hired a team to build his reputation online while going through his trial is an indicator that Africa is slowly waking up to the potent grip social media have on its judicial systems.

Pistorius was charged with the murder of his girlfriend, Reeva Steenkamp (right), on 19 August, 2013. The trial was televised internationally, and before his conviction, he wrote on his personal website that Reeva’s death was a “tragic accident”.

His 302,000 followers were enraged, so much that Pistorius created a Twitter handle — @OscarHardTruth — to balance post.

Pistorius was acquitted of murder charges but was convicted of a lesser charge of culpable homicide, equivalent to manslaughter, and sentenced to five years in prison.

South African law calls for him to serve at least 10 months of the sentence in prison before he can be released to house arrest.

During trial, he said he believed an intruder had entered his home when he fired four rounds through a locked bathroom door on February 14, 2013.