Argue cases in court, not in media

 

There is an extremely dangerous trend in the country, and that is of trial by media. Besides, it is a culture that is, sadly, being encouraged and used by lawyers more than other Kenyans. 

The golden thread that cuts through any trial is that of fairness and to achieve that law ensures that trials run smoothly without any hint of bias or illegal persuasion. Then-Chief Justice David Maraga did warn against lawyers making running commentaries in the media of live cases and even went as far as admonishing some senior lawyers against the behaviour. 

His concerns were legally sound. It was hoped that it would dissuade lawyers from discussing ongoing cases on social media or any other type of media but trial by media still happens. This has the potential of vitiating a case. It is also unfair to parties in a dispute.

In well-established legal systems, cases that get discussed in public, where sides are taken, end up having to be thrown out because there is a risk to defendants’ right to a fair trial.

In the past couple of weeks, there were cases involving public figures that drew a lot of attention with lawyers and some politicians arguing on social media and television stations against the decisions made by the Judiciary. 

The impact of lawyers and politicians commenting on live cases is much more catastrophic to due process of the law than journalists doing the same. Journalists are, by virtue of their work, expected to report on cases in court but, even then, the judges guide such a process if it is felt it is not in the public interest.

Lawyers-cum-politicians are proving even more challenging to our legal systems. They use two barrels to fight the Judiciary and often bully their way to victory. They shout the loudest if the public figure is one from their backyard.

Deputy Chief Philomena Justice Mwilu’s case and that of former Nairobi governor Mike Sonko have exemplified this very well. It is tribalism masked as a cry for justice. 

The assumptions made by social media-loving lawyers and politicians is that most cases in the country pitting public figures against the justice system are political witchhunt. This may as well be valid, given the nature of our politics, but it is hardly the whole truth. It is mostly speculation and partly pre-emptive. 

In an environment where politics is deeply linked with corruption, it is a line that could not hold water any longer. The criminal politicians have learned to pull this line to save their skins whenever found to have embezzled public funds. Claiming witchhunt is handing criminals a defence on a platter.

Pre-determined decision

Trial by media is detrimental to the justice system because it puts judges in a difficult position. They are unable to carry out their mandate judiciously. It also forces a pre-determined decision drawn from all the noises and comments made in public by lawyers and politicians who persuade the argument in their favour even if they lack the evidence to back them up. 

Lawyers who run to the media to argue an ongoing case are in contempt of the court. This is a rule that forms part of their legal training and they took oath to respect. Trial by media is a scheme by some lawyers to intimidate, coerce and frustrate a case in favour of a stronger party and that cannot be fair. It means those Kenyans with no one to speak for them risk not getting justice when they come up against public figures with bullish lawyers. 

The citizens are the first victims of trial by media as public figures who wrong them through corruption and poor leadership can get away with a crime because they have, and can afford, a line-up of noisy lawyers with Twitter handles.

Lawyers and, indeed, politicians with a legal background understand the justice processes well but choose to turn to mob justice on social media to win their cases. This instead of following the appeals system away from the media to challenge unsatisfactory decisions by the lower courts.

It is the responsibility of judges and magistrates to consider cases on merit with the facts at hand and make their decisions based on the law. This is difficult for them to do when trial by media is playing out parallel to the one in his or her court.

Lawyers have been fantastic at crying foul over an ongoing case. But they do not need to cry out in public before a court file has even been opened. It is manipulative and unprofessional. It is a way of bullying the courts and the judges therein. 

If their interest is to seek justice for their clients, then it is incumbent on lawyers to follow due process to the letter by staying away from the media while cases are ongoing. Then if they are unsatisfied with court outcomes, they can turn to the appeal system that is provided for in law.  There is also the judicial complaints system run by the Judicial Service Commission (JSC) that they can use if not satisfied by a judge’s conduct.

No self-respecting lawyer argues their case in the media. Not in Kenya, not anywhere else.