How trial by media undermines the right to a fair trial

For weeks, two gruesome stories have dominated newspaper headlines; the murders of Sharon Otieno and Monica Kimani.

From the continual and in-depth coverage of the stories and their prominent placement in papers and bulletins, it is clear that the dailies are responding to an insatiable demand by the public for every detail. The Media is riding on the wave of soaring newspaper sales and high news consumption. To be fair, we are also seeing impressive investigative journalists in action who are dispensing their duty to inform the public and reveal ‘truths’- whatever they may be.

This on the one hand is working well for us; a very public pursuit of justice sends the message that the ‘disposability’ of human beings particularly women in this case, is not acceptable. It is a challenge to the ‘impunity of powerful men’. But on the flip side, the current reporting of these stories raises some issues. 

Did any of the men accused really commit the crimes or are these cases of circumstantial evidence and Media pressure? Is this a case of Trial by Media?

We are squarely in a situation where freedom of the press is pitted against the right to a free trial and the right to free speech.

The Media may end up inadvertently harming the rights of the victims to justice. Trial by Media undermines the right to a fair trial. Although the Constitution is meant to guarantee the right of all defendants to a fair trial, ensuring this isn't always possible.

News stories about crimes are typically skewed and one-sided, they often assume that the defendant is already guilty.  They include prejudicial information that is rarely allowed during an actual criminal trial. This kind of evidence can include the accused’s past criminal history (whether or not it's relevant to the case), sensationalized descriptions of the crime, and inflammatory statements by arresting officers. In Monica Kimani’s case, character ‘witnessing’ and ‘revelations’ have been made on the victim (Monica) the accused (Irungu) and the alleged accomplices (Maribe and Kasaine). 

In both cases, there are emotional interviews with relatives of the deceased—most of whom openly state their belief that the accused is guilty.

Character assassination

The problem with this is that accused persons can argue, and rightly so that: in the hierarchy of constitutional rights, the right to a fair trial is given priority over the right to freedom of press. The defense counsel can then argue that adverse pre-trial publicity has caused prejudice to the accused and risked his right to receive a fair trial.

While it is allowable for the media to report the facts surrounding the crimes and pertinent information on the accused, the reports must not be libelous. But sometimes, as in these murder cases, the press is giving the public information aimed at proving or disproving the charges against the accused. We the public are already entering a verdict. This is Trial by Media. 

The press should not be making publications either about the victim or the accused, which would have been inadmissible in the actual trial. The result is that the accused will be deprived of the right to be heard by an impartial court.

Trial by Media also denies the victim justice since the accused, even though truly guilty, can prove that they will not be accorded a fair hearing. That in their case justice will not be “seen” to be done.

We must also question the insensitive manner in which the victims of these crimes have been treated. Character assassination and an examination of their moral attitudes DOES NOT validate the crimes against them.

The court of law is constrained by rules and processes. But in the court of public opinion, the rules are put aside for moral speculation on the actions, omissions or motives of the actors in the crime. Even more morbidly, rules are put aside purely for entertainment value.

- The writer is a PhD candidate in political economy at SMC University. [email protected]