INTRODUCTION

Media is the most powerful entity on earth. They have the power to make the innocent guilty and
to make the guilty innocent, and that’s power, because they control the minds of the masses
(Malcolm X).

Article 50 of the Constitution of Kenya provides fair hearing as part of rights and fundamental
freedoms. Every person has the right to have any dispute that can be resolved by the application
of law decided in a fair and public hearing before an independent and impartial tribunal or body.1
The presumption of innocence places the burden of proof in criminal proceedings on the
prosecution.2

However, law, crime and justice are frequent subjects of media news.3 Media is the production of
electronic and print media for circulation to the public but does not include book publishing. It
consists of broadcasting through mediums such as newspapers, magazines, television, radio and
the internet.4 The public has a right of access to information which is of public concern and
which they ought to know and the media acts as an agent to disseminate the information . Yet
the portrayal of crime can be misleading.5 This research will focus on the impact of the various
portrayals of crime by the media on the impartiality of the courts.

Media plays a significant role in the modern world as it is an imperative source of information
striving to mold public opinion. With the advent in technology, print and electronic media have
gained importance in terms of making freedom of press more significant. The manner in which
media disseminates information creates desirable expression and sentiments which creates
procedural problems when courts are administering justice. Correspondingly, the media in

1
Article 50 of the Constitution of Kenya 2010
2
Ashworth A, ' Four threats to the presumption of innocence' 123.1 South African Law Journal (2006), 63-97.
3
Hans V P and Dee J L, ' Media coverage law: Its impact on juries and the public ' 35.2 American Behavioural
Scientist ( 1991 ), 136.
4
Section 2, Media Council Act (Act No. 46 of 2013)
5
British Steel Corporation v. Granada Television Ltd, 1981 A.C. I 096 ( 1981 ), 1129
performing their role, has a duty to responsible and accountable journalism. Free and robust
reporting, criticism and debate contribute to public understanding of the rule of law, and for a
better comprehension of the entire justice system6.

BACKGROUND
According to statistics released by the Communication Authority of Kenya7, most Kenyans
consume media daily. Radio was the most accessed form of media, with about 9 in every 10
respondents in the survey having accessed radio in the last 30 days, this is followed by internet
users, as CAK recorded 44.4 million subscribers and an 80 % television viewership. Because
most of the public has little direct knowledge of the justice system, public knowledge and views
of law and the legal system are largely reliant on media representations. As stated above, the
media acts as an agent for the public by representing matters of general public importance.
Media as opinion shapers is seen through this enlightenment of the relative importance and
reinforcement of issues through news coverage which is a function of agenda setting .

Through framing, the media is able to convey information to the public in news repeats of how
an issue is characterized.8 This can have an influence on how the information is understood by
audiences . This does not mean that the media tries to spin a story or deceive their audiences.
However, a report by the Institute of Development Studies, Economic and Social Research
Council found that social media and digital technology had mixed uses where they were not only
used to propagate hate speech and mobilize for violence, but also to identify and map out
violence hotspots. Since then, they have increasingly become an indispensable tool in Kenya's
politics and governance, used by political leaders to spread information, campaign and mobilize.
Research conducted by the BBC on exploring governance in Kenya found that the Kenyan
national elections of 2007 were plagued by widespread violence.9 The media was central to the
conflict and many local languages radio stations played a role in calming tensions as well as
inflaming them.

6
Justice R.S. Chauhan, Trial by Media: An International Perspective, (PL Oct S-38, 2011),
http://www.supremecourtcases.com/index2.php
7
https://www.geopoll.com/blog/q1-2021-media-stats-kenya/
8
Kalyango Y, ' Media performance and democratic rule in East Africa: Agenda setting and agenda building
influences on public attitudes' Unpublished thesis, University of Missouri, May 2008, 7.
9
Scheufele D A and Tewksbury D, ' Framing, agenda setting and priming: The evolution of three media
effects models' 57 Journal of Communication (2007).
However, the widespread reach of social media has also been a major challenge to security,
peace and peace building since it has been used to incite hatred and violence. Hence, the media
might have influence over the viewpoint through which people perceive various events. This
study will narrowly focus on the attack on the presumption of intolerance by the media. Here, the
nature of the presumption of innocence will consider three central issues. Firstly, how the
presumption of innocence is interfered with specifically by the media. Secondly, how the court's
impartiality is affected by the interference. Lastly, it will focus on how the courts should address
the question of when the presumption is interfered with.

PROBLEM STATEMENT
In a criminal case the onus is always on the prosecution to prove the guilt of an accused person,
and the standard of proof is proof beyond reasonable doubt. When the media takes on the duty to
prove the guilt of an accused person to the public, most of which has little direct knowledge of
the justice system, the public consumes the news as the truth. Consequently, the media, through
the public, may exert pressure on the courts to decide according to what they deem is right,
otherwise it may be regarded as a failed justice system. Contended that pre-judgement by the
media undermines the distinction between an accused and a convict hindering fair trial and
affecting administration of justice.

JUSTIFICATION AND SIGNIFICANCE OF THE STUDY

JUSTIFICATION OF STUDY
This study looks forward to the issue of trials by the media in Kenya. The researcher is studying
the problem of the media on the criminal justice dispensation system and this will have been
done through the identification of a few widely reported cases over the past years. The researcher
also looks forward to contributing towards bringing a change in the process of trial by showing
how an ethical, unbiased and unfettered media is the sine qua non for a democratic form of
government.
SIGNIFICANCE OF STUDY
In the present scenario, it is seen that the media is taking too much interest in the administration
of justice through media trials which in turn infringes the right to fair trial of an individual
envisaged under Article 50 of the Kenyan Constitution. The study emphasizes on the grey areas
of the media trials and the intrusion into administration of justice caused by the same. Hence, the
research would facilitate different end users including students, academicians, lawyers and the
legal fraternity to have critical understanding of the said topic.

RESEARCH OBJECTIVES
The research objectives are:

1. To analyze the role of media on trial of cases and to identify problems associated with it.

2. To study the conflict between freedom of press and right to fair trial and to strike a
balance between these two rights.

3. To investigate how the bias arises in courts as an effect of media coverage.

RESEARCH QUESTIONS
The research questions are:

1. What is the role of the media in depicting criminal proceedings?

2. When has the media overlapped its role in depicting criminal proceedings?

3. How does bias arise in courts as an effect of the media portrayal of criminal proceedings?

HYPOTHESIS
As stated by Lord Salmon10, free press is one of the pillars of a democratic society. However,
considering the influence that the media has on the general public regarding the status of various
accused persons, the media's right to freedom of expression should be limited as it infringes on
an individual's right to access an impartial court. This is by ending where the accused person's
right begins.

THEORETICAL FRAMEWORK
This theoretical framework explains the reasons why judicial decisions may be a construct of
societal circumstances. In order to achieve this, it will focus on 'the evolving man theory' as
opined by David Ndii Mbiti in his book ' Foundations of School Administration'. It will also look
at the 'ecocultural theory' as posited by John Berry as illustrated by Nsamenang in his article
'Ecocultural Theories of Development' as a support to the evolving man theory.
10
British Steel Corporation v. Granada Television LTd, 1981 A.C. I 096 ( 1981 )
 RESEARCH METHODOLOGY

For this paper, the socio-legal research method, that involves an interdisciplinary approach to
analyze the law, legal phenomenon and the relationship between the legal phenomenon and
pragmatism in the society will be adopted. The Socio-legal research approach incorporates both
empirical and theoretical work, which have been employed for this paper. The paper will analyze
and interpret the data vis a vis the existing literature to expose the existing gaps and come up
with recommendations going forward.

Data collection and Sampling

Data Analysis
This research study will adopt exploratory approach as well as inferential data analysis methods.
The exploratory analysis method aims at exploring the relationship between the legal phenomena
in this paper, which has been applied in most parts of this paper while the inferential analysis
method focuses on drawing inferences from a smaller sample of data.

LITERATURE REVIEW
Concept of Trial by Media

As suggested by Surette11 Trial by media could be defined as media coverage arousing desirable
sentiments, creating media frenzy and negative dramatized miniseries regarding criminal justice
system in effect, invoking infotainment around a criminal case. Sometimes the media resorts to
infotainment (information mixed with entertainment). The advent of electronic media, extensive
media coverage and opening up of too many media channels in all medium and string of criminal

11
Ray Surette, Media trials, Journal of Criminal Justice, Volume 17, Issue 4, 1989, Pages 293-308,ISSN 0047-2352,
https://doi.org/10.1016/0047-2352(89)90034-2.(https://www.sciencedirect.com/science/article/pii/004723528990034
2)
and high-profile cases have led to changes in publication pattern which are likely to have
prejudicial impact on the suspects, accused, witnesses, judges and on general administration of
justice. Citizens have the right to know and the media is a gateway to channel the voice of
masses. Media has reinforced its role, through which the criminal justice hierarchy system is
known. Media reincarnates public perception of order and disorder in society. Sensationalism of
media coverage has led to heated debates between free speech and fair trial as claimed by those
who shore up for free press on one hand and right to individual’s fair trial as proclaimed by the
judiciary. Media demands for unrestricted freedom of expression in disseminating information
about a case prejudicing the construction of criminal stories which are more sensationalized; than
committed, looking more like entertainment rather than truth. Media has to balance its stance
with regard to framing of their coverage, as reporting a specific criminal event, impacts
construction of public drama and leads to media trials affecting society’s representation of
judicial efficiency.

Judicial Independence

The concept of judicial independence and impartiality is a condition precedent to the sacrosanct
principle of due process of law that the right of the accused to the fair trial should be observed. In
the view of Mr. Andrew Belsey in his article adapted in Mother Dairy Foods & Processing Ltd
v. Zee Telefilms12 verifies that the media has an onerous responsibility to ensure that facts are
verified and matter is extensively investigated, analyzed, researched and only salient critical
information is collected and rendered to its readers and public in general. Journalists and ethics
are two distinct facilitators in a democracy. While the journalists promote functioning and
discussions in a democracy the media have certain code of ethics, virtues, fairness, balanced
reporting to follow; as a restive institution which are crucial for the smooth functioning of
democratic process, sidelining the temptation of salacious storytelling and to present what is in
public interest rather than what public is interested in. If the press covers stories as its whims and
fancies, it creates a deep impression in the minds of the reader based on their coverage steering
public opinion about guilt or innocence of the accused or suspect. This kind of adverse public
opinion, desirable sentiments of mass voices or outraging harmony of a community about a trial
interferes with the functioning of the judicial process. Legal complexities may arise when there

12
Mother Dairy Foods and Processing Ltd v Zee Telefilms, Air 2005 Delhi 195.
is an unwanted interference with administration of justice, hindering Constitutional protection of
the right to fair trial. Then the question arises if restrictions of such publications are ordered in
order to protect fair trial, would it lead to abridgment of free speech or curbing of freedom of
press and dichotomy of free speech and fair trial.

Furquan Ahmed13 also expounds on both the positive and negative effects of trial by media and
its recognition by judicial systems. In a democratic country this is a topic of debate between
those who support the press and those who are against it. The problem faced emerges as a
challenge to the human rights movement. So, it is very important to consider the issues of media
trial and human rights. The article expounds UDHR principles. Various Supreme Court cases on
freedom of speech and expressions are highlighted in the article, that work on the basis of TRP
and profit and how the media is interfering and violating human rights attacking or harming
innocent people and abridging fundamental human rights. In some cases, the accused has
become guilty even before trial has begun. This is reflected in the O.J. Simpson case.

The concept of Open Justice

In an article, author Sharan Rodrick14 analyses on how open justice is made to be a useful or
comfortable concept. Openness builds up public confidence only when the public approves of
what it sees and are free to criticize the court and ask for a change. Public hearing is fundamental
in a free society to maintain public confidence in the judiciary. Open justice allows the public to
develop reliable views through observation and a bracing effect is produced. Article explores that
justice and free speech are parallel to each other. We can see that the relationship of court and
public has been displaced. The article further explores the relationship between free speech and
open justice and it has two aspects which are interrelated; firstly, the public has the right to
receive information; secondly, media has the right to impart information to the public.

This article examines the relationship of courts and media, the media and public and public and
courts, are not simple and it overlaps with each other with an intervening cause and effect. The
article also explores various technological developments that have brought a new set of legal
problems to the concept of media and judiciary.

13
Furqan Ahmed, Human Rights Perspective of Media Trial, Asia Law Quarterly, 47-62 Vol.1, No.1.
14
Sharan Rodrick, Achieving the aims of open justice? The relationship between the Court, the media and the
public, Deakin Law Review, Vol. 19 No. 1.
The concept of Fair Trial

Mr. Bahma's 15thesis extensively explores the concept of fair trial tracing from its origin. In depth
study of the framework of various international criminal systems are discussed in the thesis. The
thesis further expounds proponents of fair trial, judicial independence of impartial tribunals.
Right to fair trial is difficult to define but its scope and meaning is discussed in international
instruments and right to fair trial is crucial to due process of law. The researcher has deeply
examined UDHR, ICCPR, ECHR, AFCHR, and ACHR Principles, the main focus being on
freedom of speech and expression, reflecting that freedom of speech and expression can be
limited to protect the right to fair trial, or to uphold other conflicting principles. The basic aim of
the thesis is to describe the concept of fair trial and two important proponents of fair trial that is
judicial impartiality and judicial independence.

Media Coverage of Court Proceedings

Hans Valerie and Dee Juliet in their article, ' Media Coverage Law: Its Impact on Juries and the
public state that critics of extended media coverage of courtroom events worry that television
news programs incorporating actual footage of courtroom proceedings will mislead the public.
Thus, is by playing intense highlights of controversial trials rather than the actual happenings in
the courtroom proceedings. What they do not mention however is what impact these highlights
will have on the courts in deciding the case.

Moran Gray, and Cutler Brian, in their article 'The Prejudicial Impact of Pretrial Publicity',
examine the influence of pre-trial publicity on potential jurors' attitudes toward a defendant.
Analyses of the survey data of two studies revealed that knowledge of the case specifics were
positively and significantly correlated with perceived culpability of the defendant.

A Report to the Chief Justice on In-Court Media Coverage in Courts in New Zealand in its
summary conclusions stated that Courts are bound to uphold the rule of law and ensure fair trials.
Media organizations on the other hand work in a commercial environment that is driven by
profit. The media want to record and film material that will be of interest to their target audience,
and improve access and procedures to assist them in attracting that audience. It stated that a
tension remained between the goal of film in improving public understanding of what happens in
15
Sivasubramaniam Bahma, The right of an accused to a fair trial: The independence and the impartiality of the
international criminal courts, Durham University, (2013).
the courts and objectively informing the public about court cases, and the commercially driven
imperatives of the media.

LIMITATIONS OF STUDY
Due to the sensitivity of the study, not much has been said nor discussed in the Kenyan courts
concerning the impact of media coverage of criminal trials on the impartiality of the courts. For
example, in carrying out the study my intention was to focus on the Court of Appeal cases and
find out what has been said by the courts concerning the subject matter. However, most cases
that involved the media did not mention what impact the media would have on judges at large.