Right to know: The state, citizens and the fourth estate in Sierra Leone

Mahmud Tim Kargbo: Sierra Leone Telegraph: 28 July 2018:

The electronic, print media and politicians often squabble over whether an issue is in the public or national interest, renewing a century’s old debate.

We might forgive politicians for putting the ‘national interest’ before the “public interest”, but when the electronic and print media make the same mistake, it is time to be worried.

The electronic and print media are often called the ‘Fourth Estate’, which describes the journalists’ role in representing the interest of the people in relation to the business and political elites who are entrusted with the responsibility of doing things in the interest of citizens.

The idea of the electronic and print media as the Fourth Estate has a chequered history.  It began life as a term of abuse for the scurrilous and ill-principle scribes of the press gallery at the Palace of Westminster. Conservative Anglo-Irish Member of Parliament Edmond Burke, coined the phrase as a way of mocking the gentlemen of the press.

However, in the intervening centuries, the Fourth Estate has come to mean taking a principled position in order to keep holders of public office honest.

It is worth noting that the electronic and print media should approach any story that arises, from a careful appraisal of the revelations, allegations or speculations they contain.

There is always conflict between national and public interests. But, if we accept the premise of the Fourth Estate, we must also ask whether national and public interests are the same thing.

It might be easy to think that they are the same, but it will be a mistake to entertain that view. Both are abstractions and both are problematic. They exist as ideas, but in reality the nation and the public are not homogenous.

In a capitalist world, both are divided along class lines. In this context, the national interest is about secrecy and keeping things from citizens. On the other hand, the public interest is about disclosure and the rights of citizens to know, in that as citizens we are the “people”.

The intellectuals of the 18th and 19th centuries who gave us the conception of the Fourth Estate as a civil watchdog to keep an eye on those in power, also provided the philosophical argument for defining the public citizenry and the nation state as two separate entities with different interests.

This is clear from the writings of Thomas Paine and others, who pointed out and also acted upon the idea, that we may have just cause to maintain a government in power, if it is seen to be acting in the interest of its citizens.

Today, governments that claim to act in the “public interest” must face daily scrutiny for their actions.

In Sierra Leone, the preparedness of the government of Ernest Bai Koroma to accommodate daily scrutiny of his government’s actions was demonstrated by his passing of the Access to Information Law, which gives the Fourth Estate the power to scrutinise government actions.

I must confess, the Julius Maada Bio’s government via his Inspector General of Police are not prepared to accept such challenge from the Fourth Estate, but instead preoccupied itself with matters relating to, especially vilification of the press with an undemocratic 1965 Public Order Act, and branding whistle blowers negatively.

This is happening despite the fact that the citizens rely on the Fourth Estate to do the job of a watchdog.

One area that the Bio government via his Inspector General of Police seems to be overlooked and which the public has right to know is the  doctrine of “Res sub-judice”, freedom of expression and the Press.

It is fundamental to note that freedom of speech is a fundamental human right. It has been recognised that the right to freely express one’s ideas, is the inalienable right of an individual which has received recognition almost universally in all major human rights instruments in the world, such as the Universally Declaration of Human Rights (UDHR), International Covenant on Civil and Political Right (ICCPR) and the African Charter on Human and People’s Right (ACHPR).

Generally, the Constitution of Sierra Leone Act No 6 of 1991 provides for the protection of freedom of expression and the press as follows:   

“25. (1) Except with his own consent, no person should be hindered in the enjoyment of his freedom of expression, and for the purpose of this section the said freedom includes the freedom to hold opinions and to receive and impart ideas and information without interference, freedom from interference with his correspondence, freedom to own, establish and operate any medium for the dissemination of information, ideas and opinions, and academic freedom in institutions of learning.”

There is however, restrictions placed on the right to free speech and the press, meaning that, these rights are not absolute.  Under the ACHPR the restrictions on the right to freedom of speech is contained in Article 9(2) as follows:

“Every individual shall have the right to express and disseminate his opinions within the law.”

In Sierra Leone under the 1991 National Constitution, Section 25(2) provides the restrictions on the right to free press and expression as follows:

“Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision:

(a)    Which is reasonably required:

I.    In the interest of defence, public safety, public order, public morality or public health; or

II.    For the purpose of protecting the reputations, rights and freedoms of other persons, preventing the disclosure of information received in confidence, maintaining the authority and independence of the courts, or regulating the telephony, telegraphy, telecommunications, post, wireless broadcasting, television, public exhibitions, or public entertainment; or

(b)    Which imposes restrictions on public officers or members of a defence force; and except in so far as that provision or, as the case may be, the thing done under the authority thereof, is shown not to be reasonably justifiable in a democratic society.”

One such restriction especially maintaining the authority and independent of the courts is the non-interference through speech or publication of material through electronic or print media, on a matter which is pending in a court of law. This principle is known as the principle of Res Sub-judice.

Various academics and legal practitioners have given their interpretations on the concept of sub-judice and its inherent rules. Some scholars maintain that “contempt” is also known as “sub-judice rules”. 

The Joint Committee on Parliamentary privilege of the House of Lords and the House of Commons in the United Kingdom, opined that the doctrine of sub-judice as evolved in the common law jurisdiction proceeds on the premise that no one should interfere with legal proceedings which are pending.

In practice, this rule is usually used to prohibit publication of matters, in case of media, which are likely to prejudice the right of a fair trial when legal proceedings are pending.

The rationale behind this rule was explained in the leading English case of Attorney General V Times Newspaper Limited {1973} 2 ALL ER 54 were Lord Diplock stated :

“ The due administration of justice requires first that all citizens have unhindered access to the constitutionally established courts of criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decision will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in court of law; and thirdly; that, once the dispute has been submitted to a court  of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law”.

There is no exhaustive list of what constitutes legal proceedings, but it includes for example the following courts of judicature: Magistrate Court, High Court, Court of Appeal, and Supreme Court which are cause of record.

Normally, the restrictions or ban is on the electronic and print media from publishing or broadcasting, including on the internet, any comment or information that might seriously prejudice active legal proceedings before the court.

The legal test is once legal proceedings become “active”, it is an offence for media organisations to broadcast material which would create “a substantial risk of serious prejudice” to the proceedings.

Criminal proceedings become “active” as soon as one of the following has occurred: a person is arrested, a warrant of arrest is issued, a sermon has been issued or a person has been charged and they remain so until such time as the accused has been acquitted or convicted. Civil proceedings become “active” when the hearing date for the trial is arranged.

Once a person has been acquitted or sentenced or the proceedings come to an end in some other way, proceedings cease to become “active”, and there is much more scope for commenting on the proceedings of the convicted person and publishing material, which it was not possible to disseminate before or during the trial.

In practice, however, once a defendant has been convicted, even if they have not been sentenced (sometimes sentencing is delayed), the media treats the proceedings as no longer active as it is assumed that because sentencing is carried out by professional bodies who the law deems will not easily be prejudiced by media reports.

As to who can be prejudiced, the group to be affected is not clearly defined. Potential jurors and witnesses might be prejudiced of what they see or hear on television.

In addition, although judges are largely considered to be immune to prejudicial media reporting, Magistrate courts, for instance, are presided by lay people (Justices of the Peace) and such people can be prejudiced.

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