In the present Nigerian criminal procedure, there have been several arraignment and or parade of alleged suspects by men of the law enforcement agencies as to what might have been undoubtedly wrongly calculated to be a ‘fair comment’, on the media-both print and visual media.
Politicians and non-politicians have been victims, including some judicial officials. This has led to the disapproved coinage of ‘media trial’. Also, almost every day, this media trial has continued to have way into our Nigerian Criminal Procedure as though it is the Rule of Law in the case of the alleged suspect that he be first arraigned and tried before the public on media before being finally arraigned before the competent court of law and in which case, just as it is in many occasions, he might be discharged and even discharged and acquitted by the court of law. The question which then raises the query as to what would be the fate of such alleged suspect as to his character already defamed and misrepresented before the public in media trial either by the law enforcement agency or the media houses or the press? That is why despite the critical comments and disapprovals filed against media trial of suspects by various erudite legal scholars, the situation has not changed, especially, in the face of the alleged fights against corruption and the alleged but suspected corrupt persons, the situation which made the writer of this paper to deposit this paper as a continuous struggle against media trial in the criminal procedure, in the administration of criminal justice system in Nigeria, for a critical analysis vis-à-vis the rule of law.
According to Wikipedia, the online free encyclopedia, Trial by media is a phrase which was introduced in the late 20th century and early 21st century to describe the impact of television and newspaper coverage on a person’s reputation by creating a widespread perception of guilt or innocence before, or after, a verdict in a court of law.’. The word ‘media’, means: ‘The means of mass communication such as: radio, television, news papers, books, advertising, and other media of receiving and disseminating ideas and information; and the aggregate of media practitioners and the writing or self-expressing public’. See: Ese Malemi, Mass Media Law- Press Law, Princeton Publishing Co., third edition, 2009 at page 3. It is the submission of the writer of this paper that social media is covered by this definition as a form of media, even though the definition of ‘media’ above does not specifically mention ‘social media’ because as at that time, the social media was not trending unlike in this period of time when almost everyone is a registered user of the social media, with its impact on the individual life, communal and national affairs. And in this present generation, the social media now play a vital role in the dissemination and communication of trial by media in Nigeria, which also makes any such information displayed to be global beyond the local content and context.
It must be observed that the struggle and or dichotomy between media trial and the rule of law gains supremacy as a result of the facts and the law that both the law enforcement and the media houses or the press have the right to media and the right to freedom of expression, just as each Nigerian citizen too has the right to fair hearing and or his innocence until being found guilty as charged by a competent court of law.
Furthermore, as observed by the writer of this paper, the law has settled the dichotomy between the media trial and the rule of law to the extent that the discrepancy is laid to rest in favour of the rule of law by virtue of section 39(3) and section 45(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended)-herein after referred to as the Constitution. Section 39(3) of the Constitution provides thus ‘(3) Nothing in this section shall invalidate any law that is reasonably justifiable in a democratic society- (a) for the purpose of preventing the disclosure of information received in confidence, maintaining the authority and independence of courts or regulating telephony, wireless broadcasting, television or the exhibition of cinematograph; or (b) imposing restrictions upon persons holding office under the Government of the Federation or of the State, members of the armed forces of the Federation or members of the Nigeria Police Force or the Government security services or agencies established by law’. (Underlined words are that of the writer of this paper for emphasis). And by section 45(1) of the Constitution, ‘Nothing in sections 37, 38, 39, 40 and 41 of this Constitution shall invalidate any law that is reasonably justifiable in a democratic society- (a) in the interest of defence, public safety, public order, public morality or public health; or (b) for the purpose of protecting the rights and freedom of other persons’. (Underlined words are that of the writer of this paper for emphasis).
From the above provisions of sections: 39(3) and 45(1) of the Constitution, it is the submission of the writer of this paper that media trial of suspects either by the law enforcement agencies or the media or press amounts to defamation of the character in libel of the suspect(s) who has been arraigned on the media for public trial and a denial of his right to fair hearing to be heard within a reasonable time by court of competent jurisdiction. Also, though, such suspect could institute an action in fundamental rights enforcement, it is preferable for him to institute an action seeking damages and apologies for such defamation.
Furthermore, most often that this issue of media trial has been challenged by legal scholars, it has made little or no meaning to the law enforcement agencies and the media houses or the press, acting under the guise of fair comments perhaps due to the fact that suspects have not taken enough exemplary suits in courts to challenge such act of persecution, because media trial is not recognized as lawful in the Nigerian criminal procedure, hence its unconstitutionality and a violation of democracy and the rule of law. Therefore, there are just a very few number of judicial precedents on the subject matter of media trial. The writer of this paper hopes that confidence would be regained by suspects to take up action in the court of law against such law enforcement agencies and media houses that transmit and or disseminate such defamation. It is a right that such suspect possesses under the law. More so that the media trial has a negative effect on the judiciary, as it usurps such judicial powers unlawfully. The impact and illegality of media trial is worse where many of the occasions or some of those occasions, such suspect is not found guilty by the court before which the suspect is charged.
Furthermore, On the constitutional presumption of innocence of every Nigerian person suspected to have committed an offence in Nigeria, see: section 36(5) of the Constitution, Article 7(1)(b) of the African Charter on Human and Peoples’ Rights, Ahmed v The State (1999) 7 NWLR (Part 612) 641 at 673, Ibrahim v The State (1995) 3 NWLR (Part 381) 35, among others.
Finally, it is the submission of the writer of this paper that both the law enforcement agencies of the Nigerian government and the press or the media houses, do not have any constitutional or legal right or freedom to conduct media trial or media prosecution of suspect(s), else, they might be jointly and severally liable in defamation of the character of the suspect in civil action. Suspects-victims are also encouraged not to hesitate to take necessary legal action in the court of law against such violation of their right under the law. And in this way, it is believed that the issue of media trial will only exists in the legal archives.
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