Before considering the issues raised by the challenge to the validity of the Presidential election, it is necessary to explain the decision made to have the Court proceedings broadcast live on national television.
Ordinarily, court proceedings in Zimbabwe are not televised. Court sessions are, however, open to members of the public, save for cases in respect of which the law expressly requires that proceedings be conducted in camera. However, even where members of the public are allowed to attend court proceedings, video recording of the proceedings is prohibited.
Arguments have been advanced for and against live streaming, through television, of court proceedings. Those who support live broadcasting through television of court proceedings argue that it promotes transparency and public confidence in the justice system. They argue that fear of sensationalism is allayed through strict regulation of the broadcasting process so as to protect the dignity of the proceedings. The factors often referred to in argument in support of live streaming through television of court proceedings are transparency, accountability, responsiveness, and justice.
In New Brunswick Broadcasting Corporation v Nova Scotia (Speaker of the House of Assembly) [1993] 1 SCR 319, CORY J provided a useful insight into the factors that may be taken into account in deciding whether court proceedings should be broadcast live or not through television. He said:
“The television media constitute an integral part of the press. Reporting in all forms has evolved over the ages. Engraved stone tablets gave way to baked clay tablets impressed with the cuneiform writing of the Assyrians and the papyrus records of the Egyptians. It was not so long ago that the quill pen was the sole means of transcribing the written word. Surely, today, neither the taking of notes in shorthand nor the use of unobtrusive tape recording devices to ensure accuracy would be banned from the press gallery. Nor should the un-obtrusive use of a video camera. The video camera provides the ultimate means of accurately and completely recording all that transpires. Not only the words spoken but the tone of voice, the nuances of verbal emphasis together with the gestures and facial expressions are recorded. It provides the nearest and closest substitute to the physical presence of an interested observer.
So long as the camera is neither too pervasive nor too obtrusive, there can be no good reason for excluding it. How can it be said that greater accuracy and completeness of recording are to be discouraged? Perhaps more Canadians receive their news by way of television than by any other means. If there is to be an informed opinion in today's society, it will be informed in large part by television reporting. Nor should we jump to the conclusion that if the media are granted broader rights, those rights will be abused. Hand in hand with increased rights go increased responsibilities. The responsibility of the press is to report accurately, fairly and completely, that which is relevant and pertinent to public issues. It may be argued that the television media will only broadcast that which is sensational. That same argument could be advanced with regard to all forms of media. Yet no one would consider barring the print media from a public session of the Assembly on the grounds that they tended to be sensationalist. The public today is too intelligent, too discerning and too well informed to accept unfairly slanted or sensational reporting.”
Others have advocated for the live streaming, through television, of court proceedings on the rights-based approach. It is argued that live streaming through television, of court proceedings, accommodates rights such as the right to freedom of expression and freedom of the media, the right of access to justice, and the right of access to information. When it comes to access to justice, it is accepted that any person can attend court proceedings as long as the proceedings are not required to be conducted in camera. It is argued, however, that it is one thing to allow access to justice; it is another to allow easy access to justice. Televising court proceedings is thus said to facilitate easy access to justice.
Proponents of live broadcasting through television of court proceedings argue that televising the proceedings allows the public to know what happens during the exercise of judicial power, which is derived from the people. The public have an opportunity to see for themselves and learn how courts function in the process of hearing and determining disputes between citizens, on the one hand, and citizens and the State on the other.
The most important rider to the rights-based approach is that live streaming through television of court proceedings must take into account the principle that the individual litigants have a right to a fair trial. See South African Broadcasting Corporation Limited v The National Director of Public Prosecutions and Ors 2007 (1) SA 523 (CC).
It is universally accepted that no one fundamental human right is superior to the other. There must be a balance between public interest, and the interests of the litigants and their legal representatives, and respect for the court's decorum when administering justice.
In South African Broadcasting Corporation Limited v Thatcher and Others [2005] 4 All SA 353 (C)…, the Constitutional Court of South Africa quoted a statement by Lord Falconer of Throroton, the Lord Chancellor of England and Wales. In the foreword to the United Kingdom Consultation Paper 28/04, which was the basis of the “Broadcasting Courts Seminar” held in the United Kingdom in 2005, the Lord Chancellor said:
“Justice must be done and justice must be seen to be done. That notion exactly catches the argument about television and the courts.
The justice system exists to do justice. If it does not do justice in public it risks slipping into unacceptable behaviour and losing public confidence. With a few exceptions, our courts are open to the public, but very few people who are not involved in cases ever go near a court. Most people's knowledge and perception of what goes on in court comes from court reporting and from fictionalised accounts of trials. The medium which gives most access to most people, television, is not allowed in our courts. Should that change? Is there a public interest in allowing people, through television, to see what actually happens in our courts in their name? In a modern, televised age, I think there is a case to be considered here.”
In Scott v Scott [1913] AC 417 (HL)…, the House of Lords quoted with approval a statement by Jeremy Bentham, an English philosopher and jurist, to the effect that:
“Publicity is the very soul of justice. It is the keenest spur to exertion and surety of all guards against improbity.”
On 26 September 2018, the Supreme Court of India decided that proceedings of “constitutional importance having an impact on the public at large or a large number of people” should be live-streamed in a manner that is easily accessible for public viewing. The Supreme Court of India made the decision in a hearing concerning four consolidated matters. The cases were Tripathi v Supreme Court of India Writ Petition (Civil) No.1232 of 2017; Jaising v Secretary General and Ors Writ Petition (Civil) No.66 of 2018; Nedumpara and Ors v Supreme Court of India and Ors Writ Petition (Civil) No.861 of 2018; and Center for Accountability and Systemic Change and Ors v Secretary General and Ors Writ Petition (Civil) No.892 of 2018.
In delivering the main judgment A M KHANWILKAR J alluded…., to the benefits of live-streaming through television of court proceedings. HIS LORDSHIP said:
“8. Indubitably, live streaming of Court proceedings has the potential of throwing up an option to the public to witness live court proceedings which they otherwise could not have due to logistical issues and infrastructural restrictions of Courts; and would also provide them with a more direct sense of what has transpired. Thus, technological solutions can be a tool to facilitate actualisation of the right of access to justice bestowed on all, and the litigants in particular, to provide them virtual entry in the Court precincts, and, more particularly, in Court rooms. In the process, a large segment of persons, be it entrants in the legal profession, journalists, civil society activists, academicians or students of law will be able to view live proceedings in propria persona on real time basis. There is unanimity between all the protagonists that live streaming of Supreme Court proceedings, at least in respect of cases of Constitutional and national importance, having an impact on the public at large or on a large number of people in India, may be a good beginning, as is suggested across the Bar.
9. Live streaming of Court proceedings is feasible due to the advent of technology, and, in fact, has been adopted in other jurisdictions across the world. Live streaming of Court proceedings, in one sense, with the use of technology is to 'virtually' expand the courtroom area beyond the physical four walls of the Court rooms. Technology is evolving with increasing swiftness whereas the law and the courts are evolving at a much more measured pace. This Court cannot be oblivious to the reality that technology has the potential to usher in tangible and intangible benefits which can consummate the aspirations of the stakeholders and litigants in particular. It can epitomise transparency, good governance and accountability, and, more importantly, open the vista of the courtrooms, transcending the four walls of the rooms to accommodate a large number of viewers to witness the live Court proceedings. Introducing and integrating such technology into the court rooms would give the viewing public a virtual presence in the Court room and also educate them about the working of the Court.”
The main arguments against live streaming through television of court proceedings have ranged from the expressed fear that televising court proceedings sensationalises and degrades the justice system, resulting in reduced public respect for the courts, to fears that trials would be turned into media circuses, with the result that Judges may end up making populist decisions which are not grounded in justice and the law.
Fears have also been expressed of the possibility that the actors in the court proceedings may be too distracted by the live streaming media presence, taking away their utmost attentiveness to the court proceedings. Some also argue that televising court proceedings may expose a litigant to the public eye, thereby violating the litigant's right to a fair trial and the protection of the witnesses.
The first point to note is that live streaming of court proceedings through television is not a universal principle. Whether or not to have court proceedings streamed live will depend on the laws of a particular jurisdiction. It is a matter that is dependent on the manner in which each jurisdiction decides to manage and regulate its own proceedings, taking into account various circumstances of the case. The overriding consideration is the principle of transparency. There is an acceptance of the principle that each case has to be considered on the basis of its own circumstances.
The decision to broadcast live on national television the proceedings in this case was made by the Constitutional Court on the basis of consideration of the interests of justice. The Court took into account the fact that the matters in the Presidential election dispute at the centre of the proceedings were of constitutional and national importance, impacting on the interests of the public at large. The Court also considered the fact that it has, under the Constitution, inherent power to protect and regulate its own process, taking into account the interests of justice.
Section 176 of the Constitution provides for the inherent power of the Court to protect and regulate its own process. It provides:
“176 Inherent powers of Constitutional Court, Supreme Court and High Court
The Constitutional Court, the Supreme Court and the High Court have inherent power to protect and regulate their own process and to develop the common law or the customary law, taking into account the interests of justice and the provisions of this Constitution.”
Openness of justice, embodied in the principle that justice must be seen to be done, is not limited to ensuring that the whole country is afforded the opportunity to watch court proceedings as they unfold. The common law principle is subject to limitations imposed by the demands of the application of the principle that every case must depend on its own facts and circumstances. See Assistant Commissioner Michael James Condon v Pompano (Pty) Ltd [2013] HCA 7. This explains the differences in the exercise of discretion by courts in deciding whether or not to permit live streaming through television of the proceedings.
In Tripathi v Supreme Court of India Writ Petition (Civil) No.1232 of 2017…, CHANDRACHUD J commented on the concept of open justice in the context of a request for live streaming of court proceedings through television relating to matters of constitutional importance. HIS LORDSHIP said:
“5. Legal scholars indicate that the principle of open justice encompasses several aspects that are central to the fair administration of justice and the rule of law. It has both procedural and substantive dimensions which are equally important. Open justice comprises of several precepts:
(i) The entitlement of an interested person to attend court as a spectator;
(ii) The promotion of full, fair and accurate reporting of court proceedings;
(iii) The duty of judges to give reasoned decisions; and
(iv) Public access to judgments of courts.
The principle of an open court is a significant procedural dimension of the broader concept of open justice. Open courts allow the public to view courtroom proceedings.”
The factor that the Court took into account in arriving at the decision to permit live streaming of the proceedings through television was the extraordinary nature of the proceedings before it. An application lodged in terms of section 93(1) of the Constitution is a sui generis procedure.
The remarks of the Constitutional Court in Tsvangirai v Mugabe and Ors CC20-17…, in that regard are apposite. The Court said:
“Section 93(1) of the Constitution is based on a presumption of validity of the election of the President forming the subject of the petition or application lodged with the Court. Challenging the validity of the election of a President, in terms of section 93(1) of the Constitution, is as much an act of democratic self-government as acting in accordance with the Constitution and the Electoral Law to ensure free, fair and credible elections. The investigation by the Court, in terms of section 93(3) of the Constitution, to establish the truth of what happened in the election and the giving of a final and binding decision on the validity or invalidity of the election is a protection of the right of every Zimbabwean citizen to a free, fair and credible election of a President.”…,.
Section 93(1) of the Constitution limits the locus standi to challenge the validity of the Presidential election to aggrieved candidates who participated in the Presidential election. The limitation of locus standi is not indicative of just the personal interest on the part of an aggrieved candidate who files a Presidential election petition or application under section 93(1) of the Constitution.
In Tsvangirai v Mugabe and Ors CC20-17, the following remarks.., on the meaning of section 93 of the Constitution, are worth quoting to contextualise the decision to allow the live streaming of the Court proceedings through television by the public broadcaster. The Court said:
“The right of petition or application is conferred on an aggrieved candidate and protected under section 93 of the Constitution as a legal remedy for the protection of the right guaranteed to every citizen under section 67(1) of the Constitution to free, fair and regular elections for any elective public office established in terms of the Constitution or any other law and exercised in accordance with the provisions of the Electoral Law. The office of President is an elective public office established by the Constitution. Every Zimbabwean citizen, regardless of voting status, has a fundamental right to a free, fair and credible Presidential election. In other words, he or she has a right to a valid election of a President held in accordance with the relevant provisions of the law governing the conduct of the election. An aggrieved candidate is a registered voter who shares with all other Zimbabwean citizens the right to a free, fair and credible election of a President. It is the alleged commission by the respondents in the election of corrupt practices and/or irregularities prohibited under the provisions of the Electoral Law which materially affects the validity of the election in violation of the fundamental right of every Zimbabwean citizen to a free, fair and credible election of a President that constitutes the subject-matter of the petition or application lodged with the Court under section 93(1) of the Constitution….,.
The Court is enjoined, in the discharge of its duties under section 93(3) of the Constitution, to hold firmly in its mind, and act in accordance with, the value fundamental to any democratic society, that the basis of authority of a representative Government to govern is free, fair and regular elections.”
Once it is accepted that the proceedings before the Constitutional Court were not only limited to the parties' interests but extended to those of all citizens to a free, fair and credible Presidential election, it is clear that it was in the interests of justice to allow the live streaming, through national television, of the proceedings. Members of the public had an interest in having knowledge of the evidence produced by the disputants. They had an interest in witnessing how the Court handled the matter and what decision it reached. They had an interest in deciding whether, in their own objective assessment, the decision of the Court was fair and just.
