The principle of open justice is an essential element of any fair and accountable justice system.
Of late, some members of the judiciary have come under scrutiny for being secretive in their operations. Catherine Anite, a youthful human rights lawyer and media freedom activist, has been at the forefront to criticize the trend to barring journalists from covering cases which are deemed to be sensitive.
Anite, who has no relation with the minister Evelyn Anite, has been at it mostly through media freedom advocacy and it is on this background that he has gone a notch higher to author a book to bring out the best practices on covering courts. As Derrick Kiyonga writes, Anite intends to spell out that court proceedings should be open to the public.
When Dr Stella Nyanzi, the jailed Makerere University research fellow, sought redress in the Court of Appeal recently, the trial stalled because Justice Flavia Anglin Senoga insisted on hearing the case within her bounded chambers, away from the public eye and nosy media.
Senoga feared that if she allows the public, and to some extent the media, to follow proceedings openly, there would be a risk of replicating the events of August 2. On that day, a bottle of mineral water was thrown at Grade One magistrate Gladys Kamasanyu after she handed Nyanzi an 18-month sentence for cyber harassment.
Nyanzi legal team’s response to Justice Senoga’s modus operandi was unambiguous: ‘It’s either open court or nothing.’ In fact, the lawyers scoffed at the judge’s decision by insisting that it is ‘unconstitutional, unlawful and invalid’ to hear an appeal in a closed court or in camera.
Having boxed herself into a corner, Justice Senoga scampered and to save face, she handed the file back to her boss, Yorokamu Bawmine, the principal judge. For now, it is not clear how the case will proceed in an expeditious manner.
Nyanzi’s case is just one of the many cited by Anite, the executive director of Freedom of Expression Hub (FOE-Hub), in her new 52-page book titled Open justice: A Closed Or Open Reality For Uganda’s Media?
Anite does a global comparative study of best practices ranging from the South Africa, United Kingdom, United States, Canada, India and Brazil inter-alia, on covering courts.
Anite quotes English philosopher and jurist Jeremy Bentham, who says that: “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice. Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial. ”
In section four of the book, Anite addresses the Nyanzi predicament at the Court of Appeal by arguing that the current constitutional dispensation and a 2014 judgment by High court don’t support Justice Senoga’s moves.
In respect to the contemporary constitutional order, Anite notes that the principle of open justice in Uganda is encompassed openly and discreetly within four fundamental rights which include; the right to a fair hearing, freedom of expression, access to information and right to citizenry participation in governance.
Ronald Poteri Case
Going by the way some judges and magistrates have handled cases which attract media attention of recent, it is clear some of them don’t appreciate the idea of having media cover proceedings. But as Anite notes, all hope isn’t lost because there are exceptions to the rule.
To illustrate the positivity, Anite cites the 2014 case against Ronald Poteri, a police officer who was charged at Buganda Road court with leaking of confidential information of then police boss Gen Kale Kayihura.
With the trial underway, Anite writes that the prosecution led by Lino Anguzu made an impromptu oral application before trial magistrate Lillian Bucyana for an in-camera trial. Anguzu invoked a threat to national security as one of the reasons for the media blackout. Anguzu reasoned that since Poteri had been charged with disclosure of official secrets; the evidence would include classified information, secrets of police investigative tactics and calling informants whose identity should not be revealed.
Bucyana sided with Anguzu immediately in spite of protestations from Poteri’s lawyers. Journalists were then ordered to leave the court. However, the journalists didn’t go down without a fight and a judicial review application challenged Bucyana’s ruling at the High court on grounds that the contents of contested Kayihura recordings were not only already in the public domain but also widely been published and disseminated by a whistleblower.
Indeed, Justice Lydia Mugambe Ssali nullified all proceedings in Bucyana’s court that had been conducted in the absence of the media. Anite notes that the High court judge reasoned that the lower court was duty-bound to query the evidence concerning the alleged secrecy of the audio recordings and communications that were the subject of Anguzu’s application.
The journalists’ victory would later turn into Poteri’s victory too as the Directorate of Public Prosecutions (DPP) frantically withdrew the criminal charges.
“Despite the landmark Poteri decision, there are still incidents where journalists are blocked from covering court processes and tribunals in Uganda,” Anite notes.
“In April 2019, a High court registrar was implicated in assaulting two journalists at the Commercial division of the High court. The incident which was captured on camera showed the registrar assaulting the journalists and destroying their gadgets after he saw them filming at the court premises, while he exited a court session in which he was a witness in a land matte.”
In the book, Anite alludes to situations that can lead to exceptions to the notion of open justice.
She cites the Siracusa Principles on the Limitation and Derogation of Provisions in the International Covenant on Civil and Political Rights (ICCPR), to which Uganda ascribes by virtue of being party to the ICCPR, lays down the parameters on which rights may be limited.