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Of old school judges and media freedom

Justice James Wakiaga got journalists worried last week when he took over the murder trial of Jackie Maribe and Joseph Irungu from Justice Jessie Lessit. On Wednesday, October 17, Wakiaga expressed his displeasure with the manner the media has covered the high profile case.

According to a number of news reports, the judge wondered where journalists got the information they published about the case. Why this should concern a judge was not clear.

“Let’s be kind to all of us because I am the one likely to hear this matter,” Justice Wakiaga said. “And the information you put outside there will put me in a lot of difficult situations if I acquit these [suspects]…I am an old school judge who believes in blind justice but when I am influenced before I hear a case I get upset.”

Well, the good judge’s remarks are no small matter. But it doesn’t help that he supplied scant details.

We are journalists. We can’t presume to teach a judge his job. But we can talk about ours.

Our job is to gather, package and publish reports (we call them stories) about matters of public interest. Sometimes we gather information from sources we would never reveal to a judge or anyone else. That’s our prerogative.

Our duty is to pursue the truth – without fear or favour. We are not here to please anyone. We don’t go to work craving approval. We keep our finger on the pulse of our society. We speak truth to power.

We take our independence very seriously and guard it fiercely.

We do more than report the news. We don’t just regurgitate what other people say or do. We are not mere chroniclers of events either. We are public intellectuals. The Tanzanian scholar Issa Shivji (his name appears on these pages often, no apologies) must have thought about us when he wrote that the task of a public intellectual is “to comment, protest, caricaturise, analyse and publicise the life around him or her.” That is us.

We can’t be silenced. We sneer at intimidation. It is us Gidi Gidi and Maji Maji sang about. We are unbwogable.

The Constitution of Kenya recognizes and celebrates our work as fundamental to the functioning of our nation (Articles 33, 34, 35).

The courts are a legitimate source of news and commentary because the Judiciary is a public institution. Justice is a public good – like education or health care. How it is dispensed is a matter of public interest. Citizens have a right to know what is going on in the corridors of justice.

Judge Wakiaga expressed concern about the possibility of being influenced over the case before him. This allegation is difficult to fathom, from a journalist’s point of view.

Two things: First, one would need to prove that a certain media house through its reportage actually sought to influence judgement of a case. And two, a judge decides a case on the basis of evidence before him or her and the law – and not what anybody else, including the media, says.

What might judges and magistrates do about people who hold night-long prayers or visit magicians seeking divine intervention over a court case? Would a judge argue that such prayers could influence his mind on a case?

To attempt to gag the media on the basis of unspecified fears that their reporting might compromise a case is baffling. This goes against an open and democratic society, which the Constitution contemplates.

Unless demonstrated, journalism of itself does not threaten the delivery of justice. If justice must not only be done but also be seen to be done, then the media has a role in that process.

The murder case facing Maribe and “Jowie” has received a lot media attention for close to a month. One obvious reason for this is the fact that Maribe, a Citizen TV news anchor, is a high-profile media personality.

But that is not even the most important thing. The law guarantees media houses editorial independence. What they choose to publish is entirely up to them – as long as it is within the boundaries of professionalism.

Media houses take responsibility for their content. It is therefore unjust to criticise the entire media industry over coverage of a particular issue. There is no possibility that all media houses would cover a story the same way. If there are any failures or infractions, they should be specified and directed to the concerned media house. Blanket condemnation flies on the face of natural justice.

The Media Council of Kenya, as the institution mandated by the people of Kenya to oversee media practice, is always ready to hear any complaints.

So, Judge Wakiaga should comfortably get on with his new assignment without worrying unduly about the media.

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