Media banned at Majaga trial
Lebogang Mosikare | Friday January 29, 2021 17:46
NATA: Before Majaga’s alleged defilement case started in earnest on Monday, journalists waited eagerly for it to start. They had to endure “other matters” that were before it. However, when the case started, Magistrate Keabetswe Majuta cleared the Court before the complainant, who cannot be named for legal reasons, testified.
Before Majuta cleared the Court, the defence attorney, Mishingo Jeremia had told Court that the defence would admit 13 witnesses.
The State had previously assembled 23 witnesses. However, the anxiety that the journalists had
dissipated before the complainant gave her testimony. This was after prosecutor, Kefilwe Jeremiah from the Directorate of Public Prosecutions (DPP) rudely told assembled journalists, outside the courtyard, that they were barred from covering any part of the proceedings from the beginning to the end because the case involved a minor. This elicited debate amongst the reporters, who had normalised covering proceedings in defilement cases. This is usually after complainants had testified, and this is on condition they exercise due diligence and cover such cases in the best interests of the child. Since the second and third witnesses are the brother and father of the complainant respectively, the journos had also taken it upon themselves not to reveal the names of the witnesses, but rather use pseudoes in order not to expose the identity of the complainant. Taking into consideration the public interest in the case, I went into my alert mode the moment the police officer manning the Court went to call the complainant’s father to take the stand. This reporter asked him to relay a message asking if the Magistrate would now be allowed to cover the rest of the proceedings since the complainant had already testified. The officer acquiesced to my request and duly informed me afew minutes later that the Magistrate had acceded to my request to over the proceedings from inside the courtroom.
However, my happiness soon evaporated as less than a minute later,
after I had taken my seat in the public gallery, the State prosecutor made an application to have me thrown out of the Court because “the case involved a minor”. Without much ado, the Magistrate sealed our fate, acceding to the Prosecutor’s application. I left the courtroom heavily disappointed.
What compounded my disappointment was the fact that a few minutes earlier, the Magistrate had given me permission to cover the proceedings from inside the courtroom.
The question then is: are journalists allowed or not allowed to cover Court cases like defilement if the complainant in the matter had already testified?
To answer the question, Mmegi asked the chairperson of Editors Forum, Spencer Mogapi. Mogapi, the editor and deputy editor of the Telegraph and Sunday Standard newspapers respectively.
Mmegi also canvassed the opinion of Tachilisa Balule, an Associate Professor of Law at the University of Botswana (UB) who teaches Media Law and the Law of Delict. While admitting that he did not know exactly what transpired at the Nata Magistrate Court because he was not present during the Majaga case, Mogapi said that journalists should be guided by the press code of ethics when undertaking sensitive issues that involved minors.
The code of conduct ethics Mogapi, added, should always be exercised as a matter of principle by members of the media who should also treat it as a self-regulatory mechanism.
Mogapi explained that when covering issues involving minors in cases such as defilement, journalists should always guarantee protection for the interests of the minor in every way possible. In cases like the Majaga one, Mogapi said journalists should make sure that they did not disclose names of anyone closely related to the complainant such as the names of the brother and father of the complainant who testified in court.
Although not necessarily faulting the Magistrate for her decision to chase out the media, even after the complainant had given her testimony, Mogapi argued that magistrates should be well aware that beyond protection of the interests of the minor, there is also balance between the interests of the minor and public. “Having said that, I also encourage media personnel to always observe their code of ethics as provided for in the Press Council of Botswana that minors should always be protected. I also encourage journalists that whenever they carry out their duties in matters involving minors, they should do so with the utmost sensitivity that the cases deserve,” said Mogapi. For his part, Balule said that Magistrates should be aware that two issues clash in cases involving alleged defilement of children.
The first issue was the welfare of the child while the other was the fact that the case involved a public figure, Majaga. He added that issues like defilement and other Gender Based Violence (GBV) matters were currently topical in Botswana. Balule said in his view, he did not think that the Magistrate applied her mind thoroughly.
“The fact that the Majaga issue involved a minor is not conclusive that the media and public should be excluded from listening to the proceedings of such cases.
I am saying so because on the other hand, there is a principle of open justice, which actually requires that the public, including the media should be allowed access to judicial proceedings. Basically, we are having two principles that are clashing and the right of the other side should also be respected,” said Balule.
Just like Mogapi, Balule added that he was not in any way saying the Magistrate nor the Prosecutor who made an application were at fault because it was normal at law for legal practitioners to differ in the way they understood legal matters. The role of the Magistrate, Balule noted, was to reconcile two clashing interests.
“When you reconcile such clashing rights, you don’t substitute the right of the other party.
What the Magistrate should do is to limit each right to the extent necessary. In other words, there is no doubt that Majaga carries considerable public interest but there is definitely the need to protect the interests of the minor in the best way possible which also does not mean that the public and or media should be excluded from following proceedings of the Majaga case,” Balule opined.
Balule said that to avoid what happened in Nata, journalists should apply well in time for permission to cover such Court proceedings.