Television cameras have made their conspicuous entry into our courtrooms with much fanfare. For starters, they allow us, lay folks, unrestricted access to the judicial process – hitherto a bastion of the selected few. The Oscar Pistorius case had most of us riveted and captivated with the unfolding human tragedy.
It made the prosecutor and defence attorney household names. Close to home, some of us were fortunate to be the clichéd ‘fly on the wall’ in the election case brought by RDP and other political parties against the Electoral Commission of Namibia in 2010. At the time, the High Court and subsequently the Supreme Court of Namibia permitted unfettered and unprecedented access to the courtroom.
As journalists responsible for the courtroom beat, we were astonished that our judiciary had arrived at this decision in the first place given the restricted use of cameras in the courtrooms up until that point. Moreover, we were not the only apprehensive ones. There were genuine fears that given the polarising nature of the electoral challenge, and the heated situation prevalent in certain quarters of the country, a tinderbox could easily be ignited.
However, the judges were vindicated for their foresight. The open court served to calm tempers and consequently misconceptions of government interference quickly dissipated.
The sheer interest in the case was unparalleled and it reinforced the ethos of accountability and transparency – bedrocks of our constitutional democracy.
Sections 13 of the High Court Act (Act No. 16 of 1990) and 6 of the Supreme Court Act (15 of 1990) require that court proceedings be carried out in an open court. It cannot be that the Legislature intended that courts should only be open to the public in attendance, to the exclusion of those members of the public who would have otherwise followed proceedings via other means (including electronic media).
Thus, the requirement for open courts indeed includes access to court proceedings through the media. Article 12 (1) (c) of the Namibian Constitution supports this provision, which provides that save for compelling circumstances, judgments in criminal matters must be given in public.
Retired South African Deputy Chief Justice Dikgang Moseneke in the South African Broadcasting Corporation Limited v National Director of Public Prosecutions and Others stressed that the “principle of open justice is an incident of the values of openness, accountability and the rule of law, as well as a core part of the notion of a participatory democracy”. Live or delayed broadcasts of court proceedings enhance public participation in the judicial process.
The broadcast of the court proceedings is not limited to ensuring public participation and access but undoubtedly improves public confidence in the rule of law as well as the processes and systems that underpin the governance architecture. In the end, public trust is won and maintained. Invariably, the veil is lifted.
This gives way to an understanding of the long-held traditions of the court and the associated decorum. In our view, the benefits of broadcasting court proceedings require no further motivation as the public will become acquainted with how the courts execute their functions in upholding the rule of law. Furthermore, it would shake off the seemingly debilitating fear that overwhelms many upon entering our courtrooms.
On the other hand, the right to open justice is not the only right in our legal setup. There are other competing rights, such as the right to a fair trial. Television cameras and microphones have a way of causing discomfort amongst most of us.
Some witnesses might find the experience disconcerting and hence shun court proceedings altogether or they might be limited in their expression knowing the entire country is tuned in.
In trial, cases fall or succeed based on the impression that witnesses make on the presiding officers, their demeanour and selection of words. Being in court as a witness or accused is already uncomfortable for many, now the person has to deal with rolling cameras. This surely has the potential to prejudice the right to fair trial. Compounding the above is having litigants or their legal representatives playing to the gallery. The temptation for lawyers to impress the public with the hope of becoming instant television stars is not hard to imagine, although that is however never the intention.
This could well be extended to judges in similar circumstances who may want to hog the limelight. A likely drawback associated with cameras in the courtrooms is that viewers might appoint themselves as presiding officers and judges and could therefore be unfairly criticised for the conclusions they reach. Although seemingly far-fetched, public commentary could also be made in the hope of influencing the outcome. In that case, judges would need to rise above the fray (as they always do) and deliver judgments based on the law and not the whims of men.
Television cameras have not entirely been excluded from our court proceedings and the delivery of judgments. The 2010 election challenge is a case in point, followed by recent examples in the SME Bank and Ondonga Traditional Authority applications where parts of the arguments and rulings by Justice Shafimana Ueitele were captured on camera.
In these instances, the interested broadcasters obtained advanced authorisation from the court. While we are not aware of any opposition to such requests, our considered view is that there should be guidelines in place to govern this process.
In the absence of the guidelines, the chief justice, the deputy chief justice, the presiding judges and the office of the Registrar would seemingly have wide discretion in this regard, with little basis for challenge when any media house is aggrieved by their decision to decline access.
The right to open justice is now commonplace and the media enable the wider public access. Our judiciary should embrace televised court proceedings, which enhance participatory democracy as aptly stated by Moseneke. Admittedly, the right to open justice should in all instances be balanced against other rights and considerations such as the right to fair trial, the integrity of the judiciary and societal morals.
Kazembire Zemburuka is a communications practitioner and holds an MA International Journalism (distinction) from Cardiff University, UK. He also lectures part-time in broadcast media and communications at the Namibia University of Science and Technology.
Yarukeekuro Ndorokaze is an admitted legal practitioner of the High Court of Namibia and broadcaster who holds an LLB from the University of Namibia. These are their personal views.