THE
DECISION TO BROADCAST THE COURT PROCEEDINGS
Before
considering the issues raised by the challenge to the validity of the
Presidential election, it is necessary to explain the decision made
to have the Court proceedings broadcast live on national television.
Ordinarily,
court proceedings in Zimbabwe are not televised. Court sessions are,
however, open to members of the public, ...
THE
DECISION TO BROADCAST THE COURT PROCEEDINGS
Before
considering the issues raised by the challenge to the validity of the
Presidential election, it is necessary to explain the decision made
to have the Court proceedings broadcast live on national television.
Ordinarily,
court proceedings in Zimbabwe are not televised. Court sessions are,
however, open to members of the public, save for cases in respect of
which the law expressly requires that proceedings be conducted in
camera. However, even where members of the public are allowed to
attend court proceedings, video recording of the proceedings is
prohibited.
Arguments
have been advanced for and against live streaming, through
television, of court proceedings. Those who support live broadcasting
through television of court proceedings argue that it promotes
transparency and public confidence in the justice system. They argue
that fear of sensationalism is allayed through strict regulation of
the broadcasting process so as to protect the dignity of the
proceedings. The factors often referred to in argument in support of
live streaming through television of court proceedings are
transparency, accountability, responsiveness, and justice.
In
New Brunswick Broadcasting Corporation v Nova Scotia (Speaker of the
House of Assembly) [1993] 1 SCR 319, CORY J provided a useful insight
into the factors that may be taken into account in deciding whether
court proceedings should be broadcast live or not through television.
He said:
“The
television media constitute an integral part of the press. Reporting
in all forms has evolved over the ages. Engraved stone tablets gave
way to baked clay tablets impressed with the cuneiform writing of the
Assyrians and the papyrus records of the Egyptians. It was not so
long ago that the quill pen was the sole means of transcribing the
written word. Surely, today, neither the taking of notes in shorthand
nor the use of unobtrusive tape recording devices to ensure accuracy
would be banned from the press gallery. Nor should the un-obtrusive
use of a video camera. The video camera provides the ultimate means
of accurately and completely recording all that transpires. Not only
the words spoken but the tone of voice, the nuances of verbal
emphasis together with the gestures and facial expressions are
recorded. It provides the nearest and closest substitute to the
physical presence of an interested observer.
So
long as the camera is neither too pervasive nor too obtrusive, there
can be no good reason for excluding it. How can it be said that
greater accuracy and completeness of recording are to be discouraged?
Perhaps more Canadians receive their news by way of television than
by any other means. If there is to be an informed opinion in today's
society, it will be informed in large part by television reporting.
Nor should we jump to the conclusion that if the media are granted
broader rights, those rights will be abused. Hand in hand with
increased rights go increased responsibilities. The responsibility of
the press is to report accurately, fairly and completely, that which
is relevant and pertinent to public issues. It may be argued that the
television media will only broadcast that which is sensational. That
same argument could be advanced with regard to all forms of media.
Yet no one would consider barring the print media from a public
session of the Assembly on the grounds that they tended to be
sensationalist. The public today is too intelligent, too discerning
and too well informed to accept unfairly slanted or sensational
reporting.”
Others
have advocated for the live streaming, through television, of court
proceedings on the rights-based approach. It is argued that live
streaming through television, of court proceedings, accommodates
rights such as the right to freedom of expression and freedom of the
media, the right of access to justice, and the right of access to
information. When it comes to access to justice, it is accepted that
any person can attend court proceedings as long as the proceedings
are not required to be conducted in camera. It is argued, however,
that it is one thing to allow access to justice; it is another to
allow easy access to justice. Televising court proceedings is thus
said to facilitate easy access to justice.
Proponents
of live broadcasting through television of court proceedings argue
that televising the proceedings allows the public to know what
happens during the exercise of judicial power, which is derived from
the people. The public have an opportunity to see for themselves and
learn how courts function in the process of hearing and determining
disputes between citizens, on the one hand, and citizens and the
State on the other.
The
most important rider to the rights-based approach is that live
streaming through television of court proceedings must take into
account the principle that the individual litigants have a right to a
fair trial. See South African Broadcasting Corporation Limited v The
National Director of Public Prosecutions and Ors 2007 (1) SA 523
(CC).
It
is universally accepted that no one fundamental human right is
superior to the other. There must be a balance between public
interest, and the interests of the litigants and their legal
representatives, and respect for the court's decorum when
administering justice.
In
South African Broadcasting Corporation Limited v Thatcher and Others
[2005] 4 All SA 353 (C)…, the Constitutional Court of South Africa
quoted a statement by Lord Falconer of Throroton, the Lord Chancellor
of England and Wales. In the foreword to the United Kingdom
Consultation Paper 28/04, which was the basis of the “Broadcasting
Courts Seminar” held in the United Kingdom in 2005, the Lord
Chancellor said:
“Justice
must be done and justice must be seen to be done. That notion exactly
catches the argument about television and the courts.
The
justice system exists to do justice. If it does not do justice in
public it risks slipping into unacceptable behaviour and losing
public confidence. With a few exceptions, our courts are open to the
public, but very few people who are not involved in cases ever go
near a court. Most people's knowledge and perception of what goes
on in court comes from court reporting and from fictionalised
accounts of trials. The medium which gives most access to most
people, television, is not allowed in our courts. Should that change?
Is there a public interest in allowing people, through television, to
see what actually happens in our courts in their name? In a modern,
televised age, I think there is a case to be considered here.”
In
Scott v Scott [1913] AC 417 (HL)…, the House of Lords quoted with
approval a statement by Jeremy Bentham, an English philosopher and
jurist, to the effect that:
“Publicity
is the very soul of justice. It is the keenest spur to exertion and
surety of all guards against improbity.”
On
26 September 2018, the Supreme Court of India decided that
proceedings of “constitutional importance having an impact on the
public at large or a large number of people” should be
live-streamed in a manner that is easily accessible for public
viewing. The Supreme Court of India made the decision in a hearing
concerning four consolidated matters. The cases were Tripathi v
Supreme Court of India Writ Petition (Civil) No.1232 of 2017; Jaising
v Secretary General and Ors Writ Petition (Civil) No.66 of 2018;
Nedumpara and Ors v Supreme Court of India and Ors Writ Petition
(Civil) No.861 of 2018; and Center for Accountability and Systemic
Change and Ors v Secretary General and Ors Writ Petition (Civil)
No.892 of 2018.
In
delivering the main judgment A M KHANWILKAR J alluded…., to the
benefits of live-streaming through television of court proceedings.
HIS LORDSHIP said:
“8.
Indubitably, live streaming of Court proceedings has the potential of
throwing up an option to the public to witness live court proceedings
which they otherwise could not have due to logistical issues and
infrastructural restrictions of Courts; and would also provide them
with a more direct sense of what has transpired. Thus, technological
solutions can be a tool to facilitate actualisation of the right of
access to justice bestowed on all, and the litigants in particular,
to provide them virtual entry in the Court precincts, and, more
particularly, in Court rooms. In the process, a large segment of
persons, be it entrants in the legal profession, journalists, civil
society activists, academicians or students of law will be able to
view live proceedings in propria persona on real time basis. There is
unanimity between all the protagonists that live streaming of Supreme
Court proceedings, at least in respect of cases of Constitutional and
national importance, having an impact on the public at large or on a
large number of people in India, may be a good beginning, as is
suggested across the Bar.
9.
Live streaming of Court proceedings is feasible due to the advent of
technology, and, in fact, has been adopted in other jurisdictions
across the world. Live streaming of Court proceedings, in one sense,
with the use of technology is to 'virtually' expand the courtroom
area beyond the physical four walls of the Court rooms. Technology is
evolving with increasing swiftness whereas the law and the courts are
evolving at a much more measured pace. This Court cannot be oblivious
to the reality that technology has the potential to usher in tangible
and intangible benefits which can consummate the aspirations of the
stakeholders and litigants in particular. It can epitomise
transparency, good governance and accountability, and, more
importantly, open the vista of the courtrooms, transcending the four
walls of the rooms to accommodate a large number of viewers to
witness the live Court proceedings. Introducing and integrating such
technology into the court rooms would give the viewing public a
virtual presence in the Court room and also educate them about the
working of the Court.”
The
main arguments against live streaming through television of court
proceedings have ranged from the expressed fear that televising court
proceedings sensationalises and degrades the justice system,
resulting in reduced public respect for the courts, to fears that
trials would be turned into media circuses, with the result that
Judges may end up making populist decisions which are not grounded in
justice and the law.
Fears
have also been expressed of the possibility that the actors in the
court proceedings may be too distracted by the live streaming media
presence, taking away their utmost attentiveness to the court
proceedings. Some also argue that televising court proceedings may
expose a litigant to the public eye, thereby violating the litigant's
right to a fair trial and the protection of the witnesses.
The
first point to note is that live streaming of court proceedings
through television is not a universal principle. Whether or not to
have court proceedings streamed live will depend on the laws of a
particular jurisdiction. It is a matter that is dependent on the
manner in which each jurisdiction decides to manage and regulate its
own proceedings, taking into account various circumstances of the
case. The overriding consideration is the principle of transparency.
There is an acceptance of the principle that each case has to be
considered on the basis of its own circumstances.
The
decision to broadcast live on national television the proceedings in
this case was made by the Constitutional
Court
on the basis of consideration of the interests of justice. The Court
took into account the fact that the matters in the Presidential
election dispute at the centre of the proceedings were of
constitutional and national importance, impacting on the interests of
the public at large. The Court also considered the fact that it has,
under the Constitution, inherent power to protect and regulate its
own process, taking into account the interests of justice.
Section
176 of the Constitution provides for the inherent power of the Court
to protect and regulate its own process. It provides:
“176
Inherent powers of Constitutional Court, Supreme Court and High Court
The
Constitutional Court, the Supreme Court and the High Court have
inherent power to protect and regulate their own process and to
develop the common law or the customary law, taking into account the
interests of justice and the provisions of this Constitution.”
Openness
of justice, embodied in the principle that justice must be seen to be
done, is not limited to ensuring that the whole country is afforded
the opportunity to watch court proceedings as they unfold. The common
law principle is subject to limitations imposed by the demands of the
application of the principle that every case must depend on its own
facts and circumstances. See Assistant Commissioner Michael James
Condon v Pompano (Pty) Ltd [2013] HCA 7. This explains the
differences in the exercise of discretion by courts in deciding
whether or not to permit live streaming through television of the
proceedings.
In
Tripathi v Supreme Court of India Writ Petition (Civil) No.1232 of
2017…, CHANDRACHUD J commented on the concept of open justice in
the context of a request for live streaming of court proceedings
through television relating to matters of constitutional importance.
HIS LORDSHIP said:
“5.
Legal scholars indicate that the principle of open justice
encompasses several aspects that are central to the fair
administration of justice and the rule of law. It has both procedural
and substantive dimensions which are equally important. Open justice
comprises of several precepts:
(i)
The entitlement of an interested person to attend court as a
spectator;
(ii)
The promotion of full, fair and accurate reporting of court
proceedings;
(iii)
The duty of judges to give reasoned decisions; and
(iv)
Public access to judgments of courts.
The
principle of an open court is a significant procedural dimension of
the broader concept of open justice. Open courts allow the public to
view courtroom proceedings.”
The
factor that the Court took into account in arriving at the decision
to permit live streaming of the proceedings through television was
the extraordinary nature of the proceedings before it. An application
lodged in terms of section 93(1) of the Constitution is a sui generis
procedure.
The
remarks of the Constitutional
Court
in Tsvangirai v Mugabe and Ors CC20-17…, in that regard are
apposite. The Court said:
“Section
93(1) of the Constitution is based on a presumption of validity of
the election of the President forming the subject of the petition or
application lodged with the Court. Challenging the validity of the
election of a President, in terms of section 93(1) of the
Constitution, is as much an act of democratic self-government as
acting in accordance with the Constitution and the Electoral Law to
ensure free, fair and credible elections. The investigation by the
Court, in terms of section 93(3) of the Constitution, to establish
the truth of what happened in the election and the giving of a final
and binding decision on the validity or invalidity of the election is
a protection of the right of every Zimbabwean citizen to a free, fair
and credible election of a President.”…,.
Section
93(1) of the Constitution limits the locus standi to challenge the
validity of the Presidential election to aggrieved candidates who
participated in the Presidential election. The limitation of locus
standi is not indicative of just the personal interest on the part of
an aggrieved candidate who files a Presidential election petition or
application under section 93(1) of the Constitution.
In
Tsvangirai v Mugabe and Ors CC20-17, the following remarks.., on the
meaning of section 93 of the Constitution, are worth quoting to
contextualise the decision to allow the live streaming of the Court
proceedings through television by the public broadcaster. The Court
said:
“The
right of petition or application is conferred on an aggrieved
candidate and protected under section 93 of the Constitution as a
legal remedy for the protection of the right guaranteed to every
citizen under section 67(1) of the Constitution to free, fair and
regular elections for any elective public office established in terms
of the Constitution or any other law and exercised in accordance with
the provisions of the Electoral Law. The office of President is an
elective public office established by the Constitution. Every
Zimbabwean citizen, regardless of voting status, has a fundamental
right to a free, fair and credible Presidential election. In other
words, he or she has a right to a valid election of a President held
in accordance with the relevant provisions of the law governing the
conduct of the election. An aggrieved candidate is a registered voter
who shares with all other Zimbabwean citizens the right to a free,
fair and credible election of a President. It is the alleged
commission by the respondents in the election of corrupt practices
and/or irregularities prohibited under the provisions of the
Electoral Law which materially affects the validity of the election
in violation of the fundamental right of every Zimbabwean citizen to
a free, fair and credible election of a President that constitutes
the subject-matter of the petition or application lodged with the
Court under section 93(1) of the Constitution….,.
The
Court is enjoined, in the discharge of its duties under section 93(3)
of the Constitution, to hold firmly in its mind, and act in
accordance with, the value fundamental to any democratic society,
that the basis of authority of a representative Government to govern
is free, fair and regular elections.”
Once
it is accepted that the proceedings before the Constitutional
Court
were not only limited to the parties' interests but extended to
those of all citizens to a free, fair and credible Presidential
election, it is clear that it was in the interests of justice to
allow the live streaming, through national television, of the
proceedings. Members of the public had an interest in having
knowledge of the evidence produced by the disputants. They had an
interest in witnessing how the Court handled the matter and what
decision it reached. They had an interest in deciding whether, in
their own objective assessment, the decision of the Court was fair
and just.