Dear Simon Sabally. In America, the trial of Derek Chauvin in the alleged murder of George Floyd is being extensively covered by the media. The media gets the okay to film witnesses as they testify. Reporters and analysts also comment on the testimony of witnesses. In Gambia, such is forbidden. What does our law really say.
Thank you sir.
Dear Lamin Njie,
These are my answers. Your questions are italicized and my answers follow the questions.
“In America, the trial of Derek Chauvin in the alleged murder of George Floyd is being extensively covered by the media.”
Section 24(2) of the Constitution allows trial and delivery of judgments to be held in public excepts when the Courts decides otherwise on the grounds of public policy, public morality, welfare of persons under the age of 18, protection of private lives of persons concerned in the proceedings, not to prejudice the parties or for interlocutory applications.
“The media gets the okay to film witnesses as they testify”
Again section 24(2) does not prohibit filming of witnesses when they testify. But the court may prohibit the filming on the grounds I have highlighted above. The Children’s Act prohibits media coverage of its proceedings except when allowed by the court. Also, Section 106 (1)(e) of the Criminal Code makes it an offence for publishing a report of the evidence taken in any judicial proceedings which has been directed to be held in private.
“Reporters and analysts also comment on the testimony of witnesses.”
There is no specific prohibition in the Constitution on commentary and analysis of testimonies except when the grounds mentioned above are presented. Also, section 106 (1)(d) of the Criminal Code also makes commentary and analysis of evidence offensive if the person, while judicial proceedings are pending, makes use of any speech or writing misrepresenting proceedings or capable of prejudicing a person in favour of or against any parties to the proceeding, or calculated to lower the authority of the person before whom the proceedings are being had or taken.
The problem with the application of section 106(1)(d) of the Criminal Code is that the yardsticks to measure “capable of prejudicing….”, “misrepresenting proceedings”, “calculated to lower the authority…: give a lot of unbridled authority to the courts and judges to cite persons with contempt. Therefore, one feels safe when you do not write or comment on on-going judicial proceedings.
Note: One difference between Gambian jurisprudence and American jurisprudence is that one has archaic and obsolete laws while the other has progressive and dynamic laws.