On the sub-judice rule

Kgosietsile Ngakaagae | Friday April 20, 2018 13:36

For context, I make copious reference from the court judgement on the published words that got the lawyer and the newspaper in trouble:

“The trial of a woman who suffered 10 years of abuse at the hands of her common law husband, whom she allegedly murdered in 1996, is set to make legal history in Botswana. Seponono Harvey will be the first person to claim that she was a victim of battered woman syndrome, and should therefore, not be held criminally responsible for her acts. Metlhaetsile Women’s Information Centre in Mochudi will raise the defence of battered women syndrome when they defend Harvey before Lobatse High Court judge, Justice Aboagye.

Harvey was charged with murdering Lameck Moyo, the father of her four children, in September 1996. Attorney Maame Awuah says that prior to the incident, the couple had lived as husband and wife for 10 years, during which Harvey suffered ‘unparalleled abuse at the hands of her partner....”

The presiding Judge, Aboagye J, as he then was, took the view that the article was contemptuous of his court regard being had to the fact that it related to ongoing judicial proceedings. The attorney and the publication that interviewed her were hauled before the court on summary contempt proceedings. They were interviewed by the presiding officer, Stephen Sucker-style, and convicted accordingly. In the mind of the judge, it was not permissible to give comment on ongoing court proceedings. As it turned out the Judge was wrong.

The judgement makes interesting reading and I would recommend it to anyone as perhaps the touchstone in any effort to understand the sub-judice rule. I would, in fact suggest that every practising journalist should read it and should endeavour to have a firm grasp of the principles discussed in it. I do not suggest that it is exhaustive of the subject of the sub-judice rule. I merely say that it offers a fairly good understanding through which collision with the judiciary can be avoided.

Of particular interest to me is the pronouncement by the CoA that a statement of one side of an argument, made by an attorney or any person for that matter, to a newspaper, as a legal proposition for judicial determination, cannot be said to prejudice court proceedings and therefore, to be in violation of the sub-judice rule. Let us be clear. The sub-judice rule is not a constitutional or common law gag-order. There is no blanket prohibition against commenting on matters pending before courts.

I will not endeavour to delve into whether or not the DIS head was right in the manner in which he responded to PAC questions, and whether he would have been in contempt to answer such directly.

I am conflicted by reason of my professional involvement in the case. I can further empathise, regard being had to the fact that his office, and possibly his person, may well be a subject of an investigation. As such the effort may well have been more to avoid the risk of self-incrimination. But then, much as that would be understandable, protection against self-incrimination and the sub-judice rule are two different principles. The former is for the benefit of an individual and the latter for the benefit of the administration of justice.

In the case under discussion, it was held by the CoA that the comments, looked at in their proper context, stated the facts which the accused person and her counsel proposed to prove in support of the supposed defence of battered woman’s syndrome. The CoA highlighted that one paragraph of the article appeared, ex-facie, to border on prejudgement, but that could also support the view that this was part of the facts to be put forward in support of the legal proposition for the learned judge’s consideration. In the circumstances of the case, the suggestion that any contempt could have been intended or in fact existed had no merit. The attorney and the newspaper were absolved and the conviction was set aside.

In that matter, the CoA reiterated the warning often issued by appellate courts against incautious summary committals for contempt of court. Judges do not, and should not just throw tantrums on reading about cases over which they preside. As some commentators have opined, the sub-judice rule is more relevant to jury trial systems where triers of fact are men and women drawn straight out of the streets.

There is clearly a tension between the sub-judice rule, the right of the media and the public to discuss public issues, and the public’s right to be informed. The sub judice rule should not be an excuse against accountability. One can envisage a situation where a corrupt government, in an endeavour to avoid accountability, would move quickly to charge someone, even an innocent individual, to avail itself an excuse against public accountability. There is need for public dialogue on this subject and a further need to strengthen the legislative framework within which oversight institutions function to avoid situations where the sub-judice rule may be abused to facilitate corruption.

See Baffour-Awuah V. The State 1999 (1) BLR 366 (CoA)