CONSTITUTION WATCH 18/2016

[29th August 2016]

Constitutional Right to Fair and Public/Transparent Trials

Introduction

Opposition activists and others who were arrested for allegedly taking part in the disorders that rocked Harare last week are being brought to the Harare Magistrates Court for remand, presumably on charges of public violence or inciting public violence.

We use the word “presumably” because there is no way of knowing what the charges actually are – the charges are read out in court and the public cannot get in to hear them. 

The police are stopping access to the courts and are erecting a fence round the court building to prevent members of the public from attending the remand proceedings.  Is it lawful for the police to do this? - NO

Constitutional Right to Public Trials

Section 69 of the Constitution states that everyone accused of a criminal offence “has the right to a fair and public trial … before an independent and impartial court”.

The importance of this right to a public trial cannot be exaggerated.  Transparency is a cornerstone of the administration of justice.  Legal proceedings, both criminal and civil, must be held in public so that justice is not only done but is seen to be done.  If court proceedings are veiled in secrecy and not exposed to what has been called the “searchlight of publicity”, then injustice and corruption can flourish unobserved.  Remove the cornerstone of publicity/transparency and the whole judicial edifice will collapse.

International Rules on Publicity

The need for publicity in legal proceedings is recognised not just in Zimbabwe but throughout the world.  The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, issued by the African Commission on Human and Peoples’ Rights, state:

“In the determination of any criminal charge against a person, or of a person’s rights and obligations, everyone shall be entitled to a fair and public hearing by a legally constituted competent, independent and impartial judicial body.” (article A1)

And

“Adequate facilities shall be provided for attendance by interested members of the public” (article 3(c))

“No limitations shall be placed by the judicial body on the category of people allowed to attend its hearings where the merits of a case are being examined” (article 3(d))

“Representatives of the media shall be entitled to be present at and report on judicial proceedings except that a judge may restrict or limit the use of cameras during the hearings” (article 3(e)).

Preventing people from even entering the court building violates these rights.

Only Courts can Deny Access to Courts

There are circumstances in which the public can legitimately be denied access to criminal proceedings.  Children and vulnerable witnesses may have to be protected from the adverse effects of publicity, and the interests of State security must sometimes be considered.  But in these cases it is for the courts themselves to decide whether or not to exclude the public from the proceedings.  It is certainly not for the police to do so.  If they try to exclude the public from court proceedings they are usurping the powers of the courts themselves and are acting outside the law.

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