The 2015 John Oliver Manyarara Memorial Lecture
The role of the judiciary in establishing a societal balance
between media freedom and the fair administration of justice
Fidelis Edge Kanyongolo1
Delivered on the occasion of:
World Press Freedom Day, 3 May 2015
at the Mountain Inn, Mbabane, Swaziland
1
Associate Professor of Law, University of Malawi and retired member of the MISA Trust Funds
Board.
1
Preamble
I stand before you this morning with a sense of deep gratitude for
the opportunity and privilege that the Media Institute of Southern Africa
has given me to deliver the 2015 John Oliver Manyarara Memorial
Lecture on this, the auspicious occasion of World Press Freedom Day
2015.
This occasion is auspicious because it is the one day in the year when
the world joins media practitioners to celebrate the victories that the
media has registered in defending the right of freedom of expression- and, by
extension, other human rights and liberties- as well as facilitating the creation of
an informed citizenry.
Sadly, though, it is also a day that calls for reflection over the numerous
challenges that
media practitioners across the world continue to face for
simply doing their job. To get a sense of the scale of that challenge, we need
go no further than to note that so far this year , as reported by Reporters
Without
Frontiers, 24 journalists have been killed and another 158
imprisoned across the world; their crime? Simply doing their job of gathering
and disseminating public information and opinions.
But what makes World Press Freedom Day particularly auspicious
for the media in Southern Africa? The answer is that this is a day that offers
us an opportunity to celebrate the life and times of a remarkable man in whose
memory I am deeply honoured and greatly humbled to present this memorial
2
lecture.
That outstanding man is Justice John Oliver Manyarara-- a qualified primary
school teacher, an accomplished journalist, an eminent jurist, a fearless and
tenacious defender of media freedom and the founding chairperson of the
Trust Funds Board of the Media Institute of Southern Africa.
Justice John Oliver Manyarara: The Man
So, who then was Justice John Oliver Manyarara?
Born on 18 August 1930 in Mutare, in what we now call Zimbabwe, was one of
the few people who, at the time pursued formal education despite the odds. At
the age of 29, Justice John Oliver Manyarara graduated with a Bachelor of
Arts degree from Rhodes University in South Africa.
After working as a teacher and a journalist in the then Rhodesia and, later, in
Zambia, he proceeded to study law in the United Kingdom. He qualified as a
barrister at Gray's Inn in London, and was admitted as a barrister in the High
Court of Justice, Queen's Bench Division, in London, in November 1974.
Six years later, in 1980, Justice Manyarara was admitted as an advocate of
the High Court of Zimbabwe. He practised law in Zimbabwe until he
was appointed as a judge of the High Court of that country in
October 1983.
After serving as a High Court judge for only four years, Justice Manyarara’s
acumen and aptitude were recognized and he was appointed to the high office
of Judge of Appeal of the Supreme Court of Zimbabwe, a
position he held
3
until his retirement from the Zimbabwean judiciary in 1992.
Eight years later, Justice Manyarara returned to the bench, albeit in a
different jurisdiction, when he was appointed as an Acting Judge of the
Namibian High Court in 2000. In this position he presided over several highprofile cases, including both parts of the Caprivi Treason Trial, one of the
longest and most significant criminal trials in the history of Namibia.
Despite his extremely busy professional commitments, Justice Manyarara
managed to find the time and motivation to get together with a like-minded
freedom and
democracy advocates to establish the Media Institute of
Southern Africa Trust Fund Board (MISA TFB), of which he became the first
chairperson. Justice Manyarara served on the Board from 1994 to 2000.
In a gesture of gracious appreciation for his singular contribution to
the cause of media freedom in the region, the Media Institute of
Southern
Africa
Journalism Award
established
to
the
John
be bestowed upon
Manyarara
Investigative
journalists who
display
excellence in investigative journalism in any form of media in the
SADC region.
Sadly, on Friday, 28th May 2010, this remarkable man, Justice John Oliver
Manyarara, died following a long battle with cancer. In the wake of the news
of his death, the worlds of law and journalism in Southern Africa contemplated
a future without such a singular advocate for media freedom and human rights.
I am proud to say that I personally knew Justice Manyarara and had
the privilege of working with him, albeit briefly, when I served as a
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member of the MISA Trust Funds Board from the year 2000.
During my interaction with Justice Manyarara, I came to know him as
a man of impressive intellect and remarkable humility; a man who
had
a
passionate
independent,
diverse
commitment
and
to
pluralistic
the
establishment
media
in
Southern
of
an
Africa;
a
gentleman who firmly believed in the ability of people of the subregion
to
secure
not
only
press
freedom,
but
also
the
whole
spectrum of civil and political rights.
My memories of working with Justice Manyarara are certainly some
of the reasons why I still recall my tenure on the MISA Trust Funds
Board with only the fondest of memories.
So, when all is said and done, how does one honour such a remarkable man
within the confines of a short lecture? What tribute will suffice when words
can only convey a partial picture of a man whose life spanned such a diversity
of professional experiences; a whose immense contribution to the cause of
media freedom was matched only by the modesty of his beginnings as a
primary school teacher and the distinction of his public service as a lawyer and
a judge at the highest level of the judiciaries of two countries?
Allow me to be presumptuous and suggest that a befitting honor to the memory
of Justice Manyarara is to remember and celebrate his life and
intellectual legacy by reflecting on the role that the law can play in
mediating
the
typically
difficult
balance
between
media
freedom
and other societal interests, such as the administration of justice. In my humble
opinion, this is an apt tribute to Justice Manyarara because, as a lawyer, a
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judge and a media freedom and freedom of expression advocate he often had to
contend with, perhaps even agonise over, how to strike the right
balance
between the individual’s rights and freedoms and society’s collective interests.
And so it is that in this lecture this morning, I wish to share a few thoughts on
the role of the judiciary in establishing a societal balance between media
freedom and fair administration of justice.
The
societal
balance
between
media
freedom
and
fair
administration of justice
I will situate the discussion by briefly highlighting the remarkable evolution
that the media landscape in Southern Africa has undergone since I first met
Justice Manyarara fifteen years ago. In this, I will seek to demonstrate that the
striking of the societal balance between media freedom and fair administration
of justice is affected significantly by the context in which it is undertaken.
I will follow this description of the background and context by
outlining the
nature of the tension between media freedom and fair administration of justice,
and the legal principles and rules that most judiciaries apply in the adjudication
of particular conflicts that that tension generates.
Finally, will suggest a way in which the judiciary can exercise its
adjudicatory
power
and
authority
in
a
manner
that
ensures
that
media freedom is not negated by bogus claims of societal interests made in the
name of fair administration of justice.
The evolution of the media landscape
Let us, then start by highlighting the dynamism of the changes
in the media landscape which provide the context in which the
judiciary plays its adjudicatory role.
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When I first met Justice John Oliver
Manyarara in the year 2000, the media
landscape in Southern Africa was radically different from what it is
today. At the time, when we referred to “the media”, we almost exclusively
meant newspapers, magazines, radio and television. In most of the subregion,
online
publishing
and
broadcasting
were
virtually
non-
existent, and citizen journalism had not yet been invented. Mobile phones had
not
yet
become
ubiquitous
and
media
convergence
was
something one only read about in specialist ICT literature.
We have come a long way since then. In the here and now, media is
radically
forms
continue
different
and
and
constantly
configurations.
to
expand
in
morphing
New
forms
reach
and
of
into
ever
media
influence;
more
and
spurred
novel
journalism
on
by
developments in digital technology and the expansion of the social, economic
and political space in which facilitates people's increased
access
to an astoundingly varied menu of media products.
Of particular note in this evolving landscape is the expansion of social
media, through which virtually any individual can publish information or
opinions instantaneously to millions of people across the world and, without
the benefit (or burden) of editorial filters. Given this context, it becomes selfevident that
the assessment of the potential impact of media freedom on
societal institutions and processes, such as fair administration of justice,
must not be rigidly based on archaic notions of law and justice, but
on the realities of this "brave new world".
While appreciating the extent to which
the media landscape has
evolved
Manyarara
since
the
days
when
Justice
and
company
7
founded MISA, however, it is essential to avoid conflating changes in
form with changes in substance. In other words, it is imperative that
we
avoid
assuming
expansion
of
that
their
pluralism
in
accessibility
the
forms
necessarily
of
media
translates
and
into
improvements in media freedom and freedom of expression.
The realisation of this basic point must warn advocates of media
freedom
across
complacency
the
world
the
illusory
by
not
to
be
lured
into
effect
of
changes
of
a
sense
form.
of
Media
practitioners and advocates of media freedom must continue to be
vigilant in challenging those who wish to invoke the name of societal
interests in vain; those who use societal interests not to impose
legitimate
limitations
on
rights,
but
to
effectively
negate
their
essence.
It is against the backdrop of this cautionary note that we can now
engage
with
the
specific
question
of
balancing
media
freedom
against fair administration of justice.
Media freedom and fair administration of justice
At its most basic, media freedom entails the liberty to report and
publish
without
undue
hindrance
and
to
be
accorded
the
fullest
possible facilities for access to public information.
Needless to say that, as with most human rights, the exercise of the right to
media freedom may, in certain limited cases, be restricted in order to safeguard
other equally important societal or individual interests, including national
security, individual privacy and the right of individuals to privacy and fair trial.
However, this does not mean that the exercise of media freedom can be limited
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or denied simply because certain sections of the society consider what
the media publishes to be offensive or objectionable.
To borrow the words of the European Court of Human Rights in its
judgment in the famous Handyside v United Kingdom case decided in 1979,
the protections offered by freedom of expression apply:
"not
only
to
"information"
or
"ideas"
that
are
favourably received or regarded as inoffensive or
as a matter of indifference, but also to those that
offend, shock or disturb the State or any sector of
the
population.
pluralism,
Such
tolerance
are
and
the
demands
broadmindedness
of
that
without
which there is no 'democratic society'”. 2
This quotation underscores the importance of media freedom and freedom of
expression. However, as has been indicated earlier, it is widely acknowledged,
even in the most liberal of constitutional orders, that these freedoms can be
limited. One ground on which such limitations can be imposed is to safeguard
fair administration of justice.
The tension between media freedom and fair administration of justice takes
many forms, but the most direct conflict
takes place in the context of
“contempt of court”. Although there are variations across countries, most laws
proscribe contempt of court which may be committed through prejudgment of
the outcome of a case; undermining the authority of, and public
confidence in, the judiciary; and direct disruption of court proceedings.
2
1 EHRR 737, para. 49 (7 December 1976).
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It is easy to see how “contempt of court” presents a perfect opportunity for
media freedom to come into direct conflict with the requirements of the fair
administration of justice. It becomes equally obvious that it is with respect to
contempt of court that the role of the judiciary becomes critical in seeking to
strike the right balance, in specific cases, between the competing interests of
media freedom and those of fair administration of justice.
It is apparent that, in discharging this challenging responsibility, the judiciary
finds itself in an awkward, some would say compromised, position. The root
of
this awkwardness or compromised position is that
supposed
interests,
to
be
impartial
adjudicators
judges, who are
between
are themselves almost certainly likely to be
the
competing
more instinctively
inclined to give more weight to the interests of fair administration of justice
than to those of media freedom.
This cannot be too surprising because institutionally, and in some
cases,
personally,
judges
can
be
said
to
have
more
vested
institutional interests in preserving fair administration of justice- either
apparently or substantively- than they do in defending or promoting the
interests of media freedom.
From this perspective, it is therefore not surprising that in the name
of defending fair administration of justice, judges are often only too
ready to rule against journalists who have declined to reveal their
sources to officials conducting trial-related investigations; to impose
punishment on those who have been openly critical or "disrespectful" of
individual judges or the judiciary as a whole; and those who have reported on
on-going judicial proceedings in a manner that judges consider to be prejudgmental.
From the time when I first met Justice Manyarara to the present, in virtually
10
every country in Southern Africa, examples of journalists being fined or
imprisoned for such contempt have been too numerous to recount in such a
short lecture. Thankfully, MISA has done a good job of documenting such
cases in its media alerts and its informative regular publication, So, This is
Democracy?
If media freedom is to be better protected against spurious claims of fair
administration
of
justice,
there
is
a
need
for
judges
to resist instinctive favouring of the interests of fair administration of justice
over those of media freedom regardless of circumstances.
Re-calibrating the balance
The inherent institutional bias of the judiciary in favour of the
interests of fair trial at the expense of media freedom is often not a
reflection of the personal animosity of all judges to the media,
although this is sometimes the case. However, for the most part, it is
more the reflection of a collective mind-set reinforced by principles
and rules of law that were developed in a context in which media
freedom
and
freedom
of
expression
were
not
recognised
as
a
principle which was, at the very least, at par with the imperatives of
fair administration of justice.
The good news is that the judiciary can be encouraged to re-think its
approach to the balancing of media freedom and fair trial. This task is
made easier by the fact that within the judiciaries in all Southern
African countries, there exist many Justice Manyararas - progressive
judges who have the capacity and willingness to see beyond the
judiciary's
reflexive instinct to privilege the fair administration of
justice over all other interests, and appreciate the big societal picture
in which other interests, such as media freedom, are equally worthy
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of judicial protection.
Such judges need more than rhetorical encouragement. They also
need
legal
principles
and
rules
that
provide
them
the
doctrinal
foundations on which they can construct the new discourse which
protects media freedom from being trumped by fair administration
of justice whenever there is a clash between the two.
Limitations
of
time
prevent
me
from
embarking
on
a
detailed
exposition of the principles and rules that I would propose as the
basis
for
re-calibrating
the
balance.
Suffice
it
to
mention
two
principles that I consider to be critical to this undertaking.
The first is that increased media scrutiny of the judiciary and judicial
processes enhances the democratic accountability of the judiciary. In
most
countries
in
the
region,
formal
institutional
mechanisms
of
holding judiciaries to account for their exercise of power, such as Judicial
Service Commissions, are often weak and ineffective. In such circumstances,
the media has the potential to fill the gap by securing judicial accountability by
investigating
and
publicising
matters
related
to
the
judiciary
in
general or to individual cases, in particular.
In any balancing of media freedom against fair administration of
justice, therefore, the former should not be seen as an interest that
attaches only to the media. It should be recognised as good that yields a benefit
that accrues to the general public in the form of increased public
accountability of public institutions, including the judiciary.
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The second is that the media must give due regard to the interests of
fair administration of justice. While it is important that the judiciary
re-orient
itself
towards
a
less
biased
balancing
between
media
freedom and fair administration of justice, it is equally important for
the media to avoid taking the extreme opposite position in which media
freedom is privileged above all other societal interests.
In this regard, it is important for the media not to be dismissive of all
judicial interventions that seek to place reasonable limits on media
freedom in the name of fair administration of justice. Such would be
the case, for example, with respect to judicial limits of the disclosure of the
identities
of minors or victims of sexual offences in particular cases;
publication of unfounded allegations of impropriety among judges or other
officials involved in the administration of justice; or unauthorised
electronic recording or broadcast of judicial proceedings.
Journalists' complaints against the judiciary's instinctive bias towards
fair administration of justice at the expense of media freedom will
ring hollow, if the media itself is driven by its own instinctive bias
towards
media
freedom at
the
expense
of
fair
administration
of
justice and the human right of individuals to a fair trial.
In the end, then, it is a question of striking the right balance. However,
though the media and other stakeholders do have an important role
to play in striking that balance, the buck does stop with the judiciary,
because it is the only institution that has legal authority and power
to have the final say as to where that balance should be.
Conclusion
Justice Manyarara would have been the first person to admit that
there are no easy answers in the difficult task of balancing media
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freedom and the fair administration of justice. After all, having been
a journalist and, later, a judge, he had the rare privilege of seeing the
dilemma from both sides.
I am sure that he would certainly not have walked away from the
problem in frustration and despair. His record suggests that he would
have
grappled
with
the
issue
and
sought
answers
that
were
pragmatic, yet firmly grounded in legal principles and media ethics.
I am also certain that he would not have accepted the absurd notion
that
media
freedom
should
automatically,
and
always,
yield
to
interests of fair administration of justice. With his incisive mind and
dry wit, he probably would have observed that beneath many claims
that are made in the name of defending fair administration of justice,
lurk less honourable motivations of the perennial enemies of media freedom;
enemies whose forte is malicious censorship and monopolistic control of the
space within which citizens and the media may express themselves and hold all
public institutions accountable.
How I wish, in my heart of hearts, that Justice Manyarara was here with us this
morning to say these words himself. But then, in 2010, he departed, leaving us
only his memories.
In closing, allow me to quote what MISA Trust Fund Board, management and
staff in Tanzania, Malawi, Botswana, Angola, Mozambique, South Africa,
Namibia, Zimbabwe, Zambia, Lesotho and Swaziland , said in a joint official
statement issued in reaction to the news of Justice Manyarara’s death:
“Today southern Africa mourns one of its ardent defenders of
media freedom and freedom of speech. Although overcome
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by your loss, we look back with pride and honour at the
privilege of your counsel, leadership and even rebuke over
the years. We will miss you, Justice Manyarara, your passing
is not in vain, you fought the good fight. Your memory is
imperishable.”3
I could not have put it better myself.
Once again, let me thank members of the MISA network across the whole of the
Southern African region for according me the honour and privilege to deliver
the 2015 John Oliver Manyarara Memorial Lecture here in Mbabane,
Swaziland.
I wish all defenders of media freedom and freedom expression across the world
a reflective World Press Freedom Day.
Thank you very much.
3
“Tribute to Manyarara”, Republikein, 2010-06-14, available at http://www.republikein.com.na/se-jou-
se/tribute-to-manyarara.108499.php
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