Contempt of court greatly limits freedom of expression and media

Nation Media Group has shown great journalistic enterprise by reporting in-depth the tragic story of the dormitory fire that broke out at 2am on Sunday, September 3, at Moi Girls School-Nairobi. Its stories have captured detailed information and emotions rare in such coverage.

In one of the three stories published in the Daily Nation on Wednesday, Four to be charged as girls say one student attempted suicide thrice, several students interviewed accused one of their own of starting the fire. They said the girl had made her third suicide attempt on the night of the fire in which nine girls perished.

The students told the Nation that the Form One girl had said “she did not like the school” and confided in her colleagues she would do “something that would make her parents know that the school was not safe”. They also said the fire started from the girl’s bed.

CRIMINAL PROCEEDINGS

If this story had been published while criminal proceedings were “active”, as they now are, the Nation would have been liable for a category of contempt of court commonly known as the sub judice rule, which prohibits publication of comments on a case before a judge. It’s designed to ensure a fair trial that is not affected by prejudicial media reports.

The sub judice rule, however, abridges freedom of expression and that of the media. It limits the right to freedom of expression guaranteed in the Constitution and the freedom to seek, receive or impart information guaranteed by the United Nations Universal Declaration of Human Rights, to which Kenya is a signatory. It is, therefore, problematic and controversial.

Other categories are about disobeying court orders, creating disturbances in court, publishing court proceedings held in camera, as well as scandalising or disrespecting judges. Bu these do not affect freedom of expression as negatively as the sub judice rule.

PREJUDICED

The sub judice rule was invented in England some 400 years ago primarily to prevent jurors from being prejudiced by what has been published in the media before or during a trial. However, the general trend today is for open justice, in which all information is fully and freely reported.

In Kenya, we do not have trial by jury; so, there is even less justification for the sub judice rule.

Nobody seriously believes—least of all, the judges themselves—that what is published in the media influences judges’ decisions as much as we would like to think. Judges are trained to decide cases according to the applicable law and the evidence presented in court.

In the United States, the sub judice rule is almost non-existent. There, many lawyers and journalists make a living out of commenting in the media on ongoing cases.

FREEDOM

In fact, in the US—we keep referring to it because it guarantees freedom of the Press more than any other country—the media cannot be held in contempt of court or found to have scandalised judges. The First Amendment of the US Constitution does not allow courts to order the media in general not to report on a case or forbid them from reporting facts that are publicly known.

Postscript: The Nation went overboard in its enterprise. In its story published yesterday, 14-year-old girl detained for 7 days in fire probe, it almost revealed the identity of the girl through description.

It was bad enough that readers already knew she was a Form One student at Moi Girls School. The Nation now has told us she is 14, chocolate-skinned, slim, 5 feet 2 inches tall, has a family of three who live in Thome Estate in Nairobi and her elder sister is a third-year university student while her younger brother is in lower primary school.

Identifying children—anybody under 18 years—in court proceedings is contempt of court. It’s also against the Children Act, which states that in court proceedings a child’s name, identity, home or school shall not be published or revealed, nor the particulars of the child’s relatives.

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