analysisBy Stephen Kola-Balogun
Towards the end of last year, there was a lot of debate particularly amongst lawyers on the implications of the disgraceful outburst in open court of Major Hamza Al-Mustapha (a former chief security officer of the late Head of State General Sanni Abacha) who along with his fellow co-accused Lt. General Ishaya Bamaiyi (a one time chief of Army Staff) and a few others are standing trial on charges of conspiracy and the attempted murder of the Guardian Newspaper publisher Alex Ibru before Honourable Justice Ade Alabi in the Lagos State High Court.
Al-Mustapha had apparently in open session blatantly accused the trial judge as well as the chief prosecuting counsel, the Honourable Attorney General of Lagos State Professor Yemi Osinbajo of accepting bribes in order to get him and his co-accused convicted at all costs, of the charges levelled against them. Al-Mustapha also boasted of being able to provide evidence of these allegations because he had illegally tapped the telephone line of the trial judge. These accusations of bribery were later re- echoed a few days later by his fellow co-accused Lt. General Bamaiyi.
Although the controversy till date has focussed mainly on contempt of court-THISDAY LAW December 11th 2001. the incident in my view goes far beyond just contempt of court and raises an important and wider issue in our growing democracy as to whether or not there is now a need to postpone or impose reporting restrictions (where appropriate) in high profile criminal trials.
For many years now, there has been considerable tension between the demands of open justice, fair hearing and freedom of expression in democratic societies. Most human right legislation contain provisions guaranteeing fair hearing, freedom of expression and the press. Even where there is a need to impose restrictions on freedom of expression or opinion, they must always be proportionate and no more than necessary in a democratic society.
Section 39(1) of the 1999 Constitution, which is one of the fundamental human right provisions states that:- Every person shall be entitled to freedom of expression including freedom to hold opinions and to receive and impart ideas and information without interference. Section 39(3)(a) further states that:Nothing in this .section shall invalidate any law that is reasonably justifiable in a democratic society
(a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematography films.
Section 36 (4) of the 1999 Constitution on the right to fair hearing states that:
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.
(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 interest of justice.
The 1999 Constitution therefore clearly envisages situations in which it might be necessary to impose restrictions on freedom of expression and criminal trials held in public so as to maintain the authority and independence of our courts, interest of defence. public safety, order and morality.
At the recently concluded Human Rights Violation Investigation Commission, HRVIC, popularly referred to as the Oputa Panel, in recognition of Hon Justice Chukwudifu Oputa (rtd) who presided over the commission. Al-Mustapha made what can only be described as several star appearances. He was virtually able to address the nation and in so doing. was able to refer directly or indirectly to several issues, some of which related to the charges for which he is standing trial.
In hindsight, it was perhaps a mistake for the prosecution not to have applied for an order under the inherent jurisdiction of the court restricting the reporting of comments made by Al-Mustapha, which in some way may have had some bearing on his trial.
To be absolutely candid, such an order would have been difficult to implement in practice since the commission's sittings were often recorded live. The prosecution should have nevertheless made the effort if only to gain the assurance that Al-Mustapha would then have been more mindful of the evidence he gave at the commission's hearing in so far as it affected his criminal trial. The prosecution would of course have been able to justify applying for such an order under Section 36(4) of the 1999 Constitution or on the grounds that his evidence at the commission may have the effect of prejudicing a fair trial and thereby possibly undermine the authority and independence of the courts -Section 39 (3) (a) 1999 Constitution.
As it turned out, Al-Mustapha was able to craftily capitalise on these lapses by the prosecution (if we can refer to them as such) and then got carried away by the thrills of his star showing at the commission. Buoyed and galvanised by the celebrity status suddenly cast on him, he was able to manipulate a willing press eager to report him in their newspapers. It was therefore not surprising that he sort to utilise the same tactics that had served him well at the commission's hearing at his ongoing trial. He knew all too well that his comments would be reported and that the ensuing controversy would cause a storm and possibly halt his trial. With a bit more luck his trial may well have been assigned to another judge. It was a gamble and as far as he was concerned, it was a gamble worth taking. He stood to lose nothing, not even being tried for the lesser charge of contempt in the face of the court would make him lose any sleep.
Although it has long been clear that a court has the power to act ex mero motu, that is of it's own motion or initiative where contempt is committed in the face of the court and in other cases of criminal contempt. it has usually been said that such a course is appropriate only when it is urgent and imperative to act immediately, Balogh V. Crown Court at St Albans (1974) 3 All ER 283 at 288 per Lord Denning MR and DPP V. Channel Four Television Co. Ltd (1993) 2 All ER 517 at 521 per Woolf LJ.
Although arguably the circumstances confronting Justice Ade Alabi were urgent and imperative so as to justify his acting immediately, the learned judge was probabl,v right in deciding to proceed with caution and refer the matter to the Chief Judge who in turn assigned the contempt charge to another judge.
Regardless of this initiative. Al-Mustapha's comments have now become a matter of grave public concern amounting to scandal capable of diminishing the courts authority. It is therefore in the best interest of our administration of justice system for there to be a restriction or postponement of press reports on Al-Mustapha's comments in both trials until their conclusion. Such an order would in fact affect Al-Mustapha a lot more than the charge for contempt of court. It would also be quite prudent to accelerate the hearing of both trials and if need be re-assign some of Justice Alabi's case load to other judges. This trial, which resumes hearing on January 7, has taken far longer than necessary and it will be in the interest of all parties concerned for the case to be determined quickly without further delay.
Justification for restricting or postponing press reports in cases of this nature can be found in a recent English Common Law decision of the Criminal Division of the Court of Appeal published on June 12, 2001 in the Times Law Reports (TLR).
In Regina V. Sherwood, Ex parte The Telegraph Group Plc and Others the Court of Appeal in England illustrated how the courts and judges ought to proceed when deciding whether to impose an order postponing the reporting of a trial until after the conclusion of a second related trial by having regard to a three-stage test.
The appeal was against an order under Section 4(2) of the Contempt of Court Act 1981, which was made by Mrs Justice Rafferty on April 6, 2001 at the Central Criminal Court during the trial of Detective Constable Christopher Sherwood for murder.
The order postponed all reporting of proceedings in that trial until after the conclusion of a second trial against three other defendants' who were originally co-defendants of Sherwood.
LORD JUSTICE Longmore giving the reserved reasons of the court. said the jurisdiction to make a postponement order within the 1981 Act operated at the interface between two vital interests enshrined within articles 6 and 10 of the European Convention on Human Rights. There were two uses of the word "necessary" which should not be confused:
First. the 1981 Act required the court to address the question whether a ban was 'necessary' in the light of the facts. to avoid the perceived risk of prejudice. Unless that was demonstrated' no such order should be made. Even if that hurdle were overcome, however, it did not follow that an order had to be made.
There would then arise the question whether such an order was "necessary" in the second sense that is to say the sense contemplated by article 10.2 of the Human Rights Convention.
Sometimes, wider considerations would come into play such as to justify the refusal of a banning order even though there was no other way of eliminating the prejudice anticipated.
Those possible sources of confusion might be avoided if applications to restrict media coverage of court proceedings were approached by way of a three-stage test:
1. The first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings. If not, that would be the end of the matter.
2. If such a risk was perceived to exist then the second question arose: would a section 4(2) order eliminate it? If not. there could clearly be no necessity to impose such a ban. Again that would be the end of the matter.
On the other hand, even if the judge was satisfied that an order would achieve the objective, he would still have to consider whether the risk could satisfactorily be overcome by some less restrictive means. If so it could not be said to be necessary to take the more drastic approach.
3. Suppose that the judge concluded that there was indeed no other way of eliminating the perceived risk of prejudice: it still did not follow necessarily that an order had to be made. The judge might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils. It was at that stage that value judgement might have to be made as to the priority between competing public interests.
In applying this approach to Al-Mustapha s case. although the wording of the legislation considered was somewhat different, what is clear is that if the prosecution do decide to apply for an order restricting or postponing press reports on Al-Mustapha comments under the inherent jurisdiction of the court the court will not necessarily grant the order but the onus will be on the defence counsel or other interested parties to give to the court proposals that could avoid the granting of such an order once the prosecution can show that such an order would be justified under Section 36 (4) and Section 39 (3) (a) of the 1999 Constitution. Such proposals will have to be practical and acceptable to the court. In other words, the defence counsel will have to give some assurance of good behaviour from his client in order to avoid the granting of such an order. This will place our administration of justice system in a virtual all win situation and for this reason alone in my opinion, it is an option the prosecution would do well to carefully consider in the future.