'Trial by Media' a Tiresome Accusation
Mail and Guardian
Trial by media" has become a tiresome accusation, trotted out ad infinitum whenever a person finds coverage disagreeable.
The phrase has been in the news again thanks to unhappiness by characters as diverse as Deputy President Jacob Zuma; Judge Hilary Squires, who is hearing the Schabir Shaik trial; and Sharon Matthews, mother of Leigh - the kidnapped and killed student.
It's repeated so often, it's almost as if the media themselves are now in the dock.
Even the Cabinet has joined in. And from the African National Congress, spokesperson Smuts Ngonyama has intoned about the media acting "like a lynch mob, caring little for the rule of law and the basic principles of justice".
The "trial by media" accusation implies serious - even criminal - impropriety on the part of journalists. According to the refrain, the media are usurping powers that are properly those of the courts.
There is an ominous remedy embedded in all this: put the press back in its box!
And there is only one retort to the "trial by media" rhetoric and its sinister overtones: "Case dismissed!"
First, since when has South African public perception been bent by media messages? Did black people believe the South African Broadcasting Corporation under apartheid? Do the polls show Zuma's popularity collapsing under the collateral damage of the trial against his unsavoury pal Shaik?
The courts convict and punish people. They have proper clout; the media do not. So, the connotations implied by "trial by media" are misleading.
Second, since when have our judges been swayed by media opinions, as opposed to hard evidence held up to scrutiny in court? These are not novice members of a jury, but people appointed for their competence in sifting fact from fiction.
Third, the Matthews family can rest assured. Yes, an alleged confession was reported second-hand in You magazine, regarding the man accused of Leigh's murder. But his guilt or otherwise will be assessed on facts established before the court. What evidence against him is admissible is for the judge to decide - irrespective of what the media do or don't publish.
These three points should put paid to literal notions of "trial by media". But what about media coverage in relation to the "court of public opinion"? Is there merit in the view that "trial by media" violates the presumption of innocence, even when an accused is acquitted by a court?
To answer this, consider Wouter Basson - found not guilty of poisoning activists, perceived otherwise by significant publics. Blame media malice for this disjuncture? I don't think so.
Let's also ask exactly what the media "find" a person guilty of. Indeed, only a court can decisively declare whether a law has been contravened. But there are many other wholly legal matters that fall within the public interest and attract adverse attitudes from the media.
The problematic financial affairs of a deputy president, for one.
Thus, journalists may well adjudge that Zuma is guilty of a mess around his personal monetary affairs. That is not the same thing as saying he has transgressed the law. It does not send him to prison, or deal him a fine. Or - perhaps - even spoil his chances for the presidency.
Further, reporting adversely about the deputy president is not to disrespect the authority of the courts to make definitive findings. If Squires finds compelling evidence that Shaik never gave a bean to Zuma, this will certainly be covered in the news.
In the meantime, if information continues to emerge about Zuma's financial affairs, it will continue to be reported. Presumably, those crying "trial by media" wouldn't want South Africa to be kept in the dark about a man who would lead the country.
Many in the "trial by media" chorus seem to think there must be an ulterior motive for the media to publish discrediting information about an evidently innocent man.
Here's the score: media people publish these stories because it is their business to do so.
It's not because journalists set themselves up as saints or self-righteous role models. Many can barely even manage their own petty-cash claims. (The difference between them and the deputy president? Journalists don't aspire to run the country - they'd be in politics if they did.)
Is there, then, a hostile agenda regarding Zuma within the media? On the contrary, a number of newspapers leaned towards the deputy president in his tangle with former national director of public prosecutions Bulelani Ngcuka last year. So where is the evidence, 10 months later, of journalists having now developed personal or political grudges against the man?
The mundane truth is that the motives of the media in this instance are nothing more than the mores of publishing. Their interest is in what is newsworthy and controversial, and what will sell.
And, for credibility's sake, media motives also extend to publishing what's fair. If Zuma were to offer concrete information (as distinct from his general denials) that could salvage his financial reputation, not a single medium would desist from balancing what has been published to date.
Would the deputy president's coming forward in this way interfere with the case currently in process? Enter "sub judice", the principle of not disturbing justice in progress, and a phrase as abused as frequently as "trial by media".
The point of the sub judice rule is that extraneous comment or information should not corrupt the course of justice. The test of whether this really happens has to be assessed in each specific instance - that is, if in fact there is actual damage being done to justice.
I doubt that Zuma's account of the seemingly sad state of his financial management would damage the case against Shaik. But it is not him in the firing line for subverting "sub judice". It's the usual suspect -- the press.
Squires has been reported as saying that trial by newspaper is a real danger to a fair resolution of the Shaik case. How great a danger, he did not say. Presumably, were this to materialise to the extent that he would have to dismiss the case, he would spell out his views in more detail.
This is because, as he would know, mere publication of information or comments with a bearing on the guilt or otherwise of an accused does not automatically sabotage the sub judice rule.
Two more points:
Even where media violation of sub judice may occur, the question needs to be asked whether the damage is of such an extent that it cannot be compensated by remedial measures by the judge.
The importance of unimpeded justice and the right of an individual to a fair trial also needs to be balanced against two other rights. These are the rights to free expression (including those of the media to comment and report on a case) and the right of the public to transparency and open justice.
When could free expression and public coverage jeopardise justice and fair trial rights? When, in other words, could it infringe "sub judice"?
One, rare, instance is when it may influence a witness. But in countries such as Australia, this is increasingly being disregarded given the corrective of cross-examination in the court itself. One exception is where publishing a photograph of an accused could lead, in court, to an artificial identification of a suspect.
A second problematic instance is publicising prior convictions ahead of a verdict. Yet, even this does not necessarily deprive an accused of due process, as a Florida court has found.
A third situation is when the timing of information could strengthen or weaken the logic of either the defence or the prosecution. This tricky matter, again, needs to be assessed in each specific instance.
Contrary to the widespread claims of "trial by media" transgressing sub judice, such allegations should only be used in clear-cut cases when journalists' actions have actually derailed a case and thereby constitute legal contempt of the institution that is constitutionally charged with implementing justice.
What sanctions on the media should follow in these kinds of cases? An answer needs to take into account whether such contempt results from negligence, recklessness or malicious intent.
Also important is whether reasonable steps were taken in ascertaining if publication would in fact violate the sub judice rule. Further, as the Australian press council argues, there should be a difference as to whether the case is a civil, rather than criminal, one. All this may mitigate the gravity of the violation.
One would not think so from the currency of "trial by media" slurs, but most media coverage does not threaten the sub judice principle. So, instead of the generalised media being summarily tried, convicted and sentenced sans appeal, anyone making this accusation should be called on to substantiate – and to explain why, in their view, South Africa would be a better place if a chill were put on the reporting of legal processes.
Some European countries only report those trials where a guilty verdict is reached. Under such a dispensation in South Africa, we'd know naught about Zuma's fiscal fumblings; we'd never hear the claims about an alleged murderer's "confession".
At least, then we wouldn't be subjected to the claims about "trial by media" and "sub judice" being bandied about.
But maybe enduring the mantras is a small price to pay for a free media.
Wally Mbhele responds;
In my previous column, I wrote that Wally Mbhele had been "deeply implicated" in City Press's troublesome coverage around the Ngcuka spy story. This was based on testimony by his editor, Vusi Mona, at the Hefer commission.
Since I wrote that, Mbhele has told me that he had argued against the decision to publish the initial spy story. He added that he had also resisted publishing the contents of the infamous "confidential briefing", and had later penned the editorial apologising to Ngcuka.
However, Mbhele also said he had been ultimately persuaded by Mona to go along with the initial publication. And that, later as acting editor, he had followed Mona's insistence that the briefing be published, believing at the time that Mona was about to be reinstated as editor.
Whether this amounts to being "deeply implicated" is perhaps a matter of semantics.
But I am happy to add an important element: that Mbhele today has no qualms expressing regret for what happened at the paper. That is a lot more than can be said for Mona, or for Ranjeni Munusami, the journalist behind the initial story.
With acknowledgements to Guy Berger and the Mail & Guardian.