When the court of public opinion competes with the court of law

Fellow Nigerians, it is my pleasure interrogating the above subject matter with you once again. I recall that I have, at one time or another, interrogated a subject substantially similar to what I intend to discuss today. Ordinarily, I would have preferred not to return so soon to an issue previously ventilated. However, developments in our country increasingly demonstrate that the relationship between social media and the administration of justice deserves constant interrogation. The subject is no longer merely about freedom of expression or the inconvenience caused by irresponsible online commentary. It is gradually becoming a fundamental question about the capacity of our justice system to deliver justice in an environment where cases are sometimes investigated, prosecuted, defended, judged and sentenced on social media long before a court of competent jurisdiction has had the opportunity of hearing evidence. We are living in an age in which everybody with a smartphone potentially owns a newspaper, a radio station and a television channel rolled into one.

There are no editors at the gate, no sub-editors checking facts, no legal departments warning against prejudicial publication and, in many cases, no professional obligation whatsoever to distinguish allegation from fact. A person hears something in the morning, embellishes it in the afternoon and publishes it to millions by evening. Before the person accused has even become aware of the allegation, judgment may already have been delivered in the court of public opinion. That development should concern every lover of justice. Let me immediately make an important qualification. Social media is not inherently an enemy of justice. Far from it. Properly deployed, it is capable of strengthening justice delivery, promoting accountability, exposing wrongdoing, expanding access to legal information and amplifying the voices of citizens who might otherwise never be heard.

There are instances where injustices that would previously have been buried were exposed because a citizen possessed a telephone and an internet connection. Cases of police brutality, unlawful detention, abuse of public authority, domestic violence and other forms of misconduct have sometimes received official attention only because citizens documented and circulated them. Social media has therefore democratised information in a manner that traditional institutions could never have imagined. The difficulty arises when the legitimate right to expose injustice degenerates into a presumed right to determine guilt.

There is a world of difference between saying, “This allegation deserves investigation,” and declaring, “This man is a criminal.” There is an equally profound difference between criticising a judgment after reading it and mobilising public hostility against a judge while proceedings are still ongoing. Unfortunately, those distinctions are increasingly disappearing from our public discourse.

The Nigerian Constitution places fair hearing at the centre of our administration of justice. Section 36 guarantees the right of a person to have questions concerning his civil rights and obligations determined fairly, and in criminal proceedings, the Constitution preserves the elementary but indispensable presumption that a person charged with an offence is innocent until proved guilty. Our appellate courts have repeatedly treated fair hearing not as a ceremonial technicality but as a foundational requirement of justice. Yet social media culture increasingly works in the opposite direction. The philosophy of a court is: hear both sides. The philosophy of social media too often is: react first.

The court asks: what is the evidence? Social media asks: what is trending? The court permits examination and cross-examination. Social media permits likes, reposts and insults. The court is required to give reasons for its conclusions. The mob requires none. There lies the danger. There is a Yoruba saying: àgbà kì í wà lọ́jà, kí orí ọmọ tuntun w, where elders are present in the marketplace, things ought not to go completely awry. The challenge before the legal profession, the media, regulatory institutions and enlightened citizens is therefore to ensure that the digital marketplace does not become a place where the ancient safeguards of justice are casually discarded. They must rise to the challenge as a matter of urgency.

One phenomenon that particularly troubles me is what has become popularly described as trial by media, which has now become more virulent in the social-media era. Once an arrest is announced, photographs of suspects are circulated and narratives are supplied by investigators, commentators immediately begin assigning guilt. Sometimes investigating agencies themselves parade suspects before cameras, disclose allegedly incriminating materials and effectively present a prosecution case to the public before filing anything meaningful before a court. The accused person may later be discharged, acquitted or never even prosecuted. By then, however, social media has permanently archived his alleged crime.

The law may acquit him, but Google remembers. His neighbours remember. His business associates remember. His prospective employers remember. His children may encounter the allegations years later. This is why those entrusted with coercive powers must exercise extraordinary restraint. Arrest is not conviction. Investigation is not proof. Charge is not guilt. Remand is not conviction. Even an apparently overwhelming accusation remains an accusation until tested by the judicial process.

Unfortunately, our appetite for instant conclusions increasingly overwhelms these distinctions. We must also recognise another dimension of the problem. Social media pressure does not operate only against accused persons; it can operate against judges themselves. Before the hearing of politically sensitive, commercial or criminal cases, narratives are sometimes carefully constructed around judicial officers.

If an interim order goes one way, the judge is immediately described as courageous. If the next ruling goes another way, the same judge becomes corrupt. Political supporters assess judicial integrity by whether the decision favours their preferred candidate. Litigants increasingly appear to believe that what cannot be achieved through legal submissions may perhaps be achieved through sustained online intimidation. This is extremely unhealthy. Judicial officers are human beings. They read newspapers. Their relations use social media.

Their colleagues are aware of public discourse. Even where a judge consciously shuts himself or herself away from online commentary, the atmosphere generated around a case can become impossible to ignore. The danger is not merely that a judge will actually succumb to pressure. Equally damaging is a public perception that judicial outcomes are responses to hashtags, demonstrations or coordinated media campaigns. Justice must not only be independent; society must have confidence that it is independent. The National Judicial Council’s ( NJC) own policy framework recognises that public trust and confidence, judicial independence, accountability, transparency and efficient justice delivery are central to the health of the justice system. It expressly identifies weakening public confidence, delay and concerns about judicial independence among the problems requiring institutional attention. Indeed, the Code of Conduct for Judicial Officers demands considerable restraint from judges regarding pending or impending proceedings. Judicial officers are expected to abstain from commenting publicly on such matters, subject to limited exceptions connected with official duties and explanations of court procedure.

Consider the imbalance this creates. A judge handling a controversial case may be abused daily, falsely accused, caricatured and subjected to organised attacks but cannot appropriately descend into the social-media arena to defend every ruling or explain every allegation.

This institutional silence, necessary though it may be for judicial dignity, can sometimes allow false narratives to flourish unchallenged. That is why I have previously advocated, and still advocate,a stronger public-information architecture for the judiciary.