In his address at the swearing in ceremony for new Senior Advocates of Nigeria, held at Abuja on September 12th, 2012, Mohammed Adoke, SAN, the Hon. Attorney-General of the Federation and Minister of Justice complained about criticism of judges and judgments in the media.
While speaking on “some of the challenges facing the legal profession, chief amongst which is the declining ethical standards and discipline at the Bar”, the AGF stated that “it is a matter of deep regret that lawyers, including some SANs routinely engage in unwholesome practice unbecoming of members of the noble profession.”
“Criticizing judges in the media” even when the critics are yet “to read their judgments, in order to determine the reasoning of the court; and commenting on matters that are sub-judice” were named by the AGF as examples of such unwholesome practice. “These”, the AGF noted, “are matters that were completely unheard of in the profession some few years back and where such misconduct was reported, it drew condemnation and appropriate sanctions” The AGF recalled that at the recently concluded Bar conference, he had stressed the need for the Bar “to reclaim the profession and to show the bad eggs…the way out..”. He urged the leadership of the Bar to “put the issue of professional ethics and discipline on the front banner.”
Mohammed Adoke, SAN was not the first AGF to denounce criticism of court’s judgments and judges. On record, virtually all his predecessors in office since 1999 had, during their respective tenures, condemned criticism of judgments and judges. At various times and on various occasions, the NBA also had weighed in to condemn criticism of court judgments.
A particular NBA Secretary-General, R.A Lawal-Rabana, (now a SAN) at a media briefing, held while in office, declared that “the NBA would soon start treating criticism of judgments by lawyers as acts of professional misconduct” Michael Andooaka, SAN (?), the former AGF, also declared at a public function, while in office, that “criticism of judgments of court amount to denigration of the judiciary” and that “steps would be taken to put a stop to such practice”. Not too long thereafter, at a Call to Bar Ceremony, held at the Nigerian Law School, the Body of Benchers lent its eminent voice in deprecation of criticism of judgments of courts.
In spite of this serial condemnation of lawyers’ criticism of court judgments and judges in the media, the question of whether doing so is un-ethical, and tantamount to professional misconduct, ought to be posed and openly discussed and resolved. As we pose and discuss this question, we note that those who hold the view that it is wrong for lawyers to criticize judges and judgments in the media make no clear-cut distinction between lawyers who appeared as counsel in the cases leading to the judgments being criticized, and lawyers who did not participate in those cases, but who are merely expressing their opinions on the decisions and conduct of judges in those cases.
Unarguably, discussing and misrepresenting facts of cases that are pending in court and making prejudicial statements pertaining thereto is a criminal offence. Such discussion and misrepresentation by counsel appearing in a pending case could well lead to the counsel facing an additional charge of professional misconduct.
Section 133 of the Criminal Code Act, Cap C38 of the Laws of the Federation of Nigeria 2004 , which, broadly, defines contempt of court and prescribes punishment for same, provides in Section 133 (1&9) that: “any person, who while a judicial proceeding is pending, makes use of any speech or writing, misrepresenting such proceeding, or capable of prejudicing any person in favour of or against any party to such proceeding, or calculated to lower the authority of any person before whom such proceeding is being heard or taken; or commits any other act of intentional disrespect to any judicial proceeding or to any person before whom such proceeding is being heard or taken, is guilty of a simple offence and liable to imprisonment for three months”
Rule 33 of the Rules of Professional Conduct for Legal Practitioners, 2007 stipulates that: “a lawyer or law firm engaged in or associated with the prosecution or defence of a criminal matter, or associated with a civil action shall not, while litigation is anticipated or pending in the matter, make or participate in making any extra-judicial statement that is calculated to prejudice or interfere with, or is reasonably capable to prejudicing or interfering with, the fair trial of the matter, of the judgment or sentence thereon”.
A careful reading of the provision of Section 133 of the Criminal Code Act and provision of Rule 33 of Rules of Professional Conduct shows clearly that what is prohibited is the misrepresentation (in speech or in writing) of proceedings of court in a manner that demeans the Judge, or prejudices or interferes with the fair trial of a case and judgment thereof, while the court proceedings are pending (emphasis ours).
Obviously, Section 133 of the Criminal Code, which deals with contempt ex-facie curiae (outside the court) and provision of Rule 133 do not apply to criticism of court judgments ( final) by lawyers ( whether or not they participated in cases wherein those judgments were delivered), and non-lawyers, after court proceedings in those cases have ended.
In spite of all that is known about the sub-judice rule, we make bold to state that the due administration of Justice is a matter of public interest, and, therefore, a fair matter for public comment. Trial proceeding, conduct and decisions of the judge are matters of public interest which may be lawfully commented upon as soon as judgment is rendered in a case.
Any comment on a matter that is pending in court or on a matter that is being tried must not create a bias in the public mind against the parties or in any way prejudice the fair trial of the case; otherwise, contempt of court, punishable with fine or imprisonment or both may result. (See Fair Comment and Matters of Public Interest in Gatley on Libel & Slander, 8th Edition; para. 735, page 317-318)
There is no provision in the Criminal Code Act and Rules of Professional Conduct that prohibit media criticism or critique of judges and judgments, after delivery of judgments, by lawyers and non-lawyers. We are aware that Rules 30 and 31(1&2) of the Rules of Professional Conduct state that lawyers are officers of the court and that they owe the courts a duty. We insist, however, that being officers in the temple of justice and owing the courts a duty do not preclude lawyers from criticizing judges and their judgments in the media.
Rules 30 and 31(1&2) provide that “ a lawyer is an officer of the court and accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice”; that “ a lawyer shall always treat the court with respect, dignity and honour”; and that “ where the ( emphasis ours) lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities.”
Contextually, the provisions of Rule 30 and 31(1&2) apply to lawyers who are appearing in a particular case before a court. And so “the lawyer” who has reasons to accuse the judge of misconduct or violation of oath of judicial office, while adjudging a case, may file a petition to the Chief Judge or Head of a Court or the National Judicial Council, to seek redress, while a case is pending or upon the conclusion of a case, without criticizing the judge or judgment in the media. The use of the words: “the lawyer” in the sub-rule, in contradistinction to “a lawyer” clearly indicates a reference to the lawyer that is appearing in a particular case, and not any other lawyer who did not so appear.
Before our distinction between “the lawyer” and “a lawyer” is misconstrued, we hasten to submit that even the lawyer who appeared in a case, rightly, can criticize, in the media, the judgment that emanated from the case in which he had appeared.
When the lawyer does so, he may not necessarily be accusing the judge of misconduct or a breach of the code of judicial office, as he has a right to do, on good grounds, under Rule 31 ( 2); but he may be expressing his opinion on or his disagreements with the findings and conclusions of the judge- findings and conclusions which are covered by judicial immunity, and for which the judge cannot be sued or sanctioned, even if they be misdirection or errors of law.
The intended or actual exercise, by a lawyer, of his client’s constitutional right of appeal against a dissatisfactory judgment, does not bar the lawyer’s right to publicly criticize the judgment in exercise of his constitutional right to freedom of expression.
Lawyers and non lawyers have a right to hold opinions and express such opinions publicly through the media, whether those opinions are on court judgments or not. Section 39(1) of the Constitution of Nigeria states that “every person shall be entitled to freedom of expression, including freedom to hold opinions and to receive and impart ideas and information without interference” While we note that Section 39(3) contains a proviso to the effect that “nothing in Section 39 shall invalidate any law that is reasonably justifiable in a democratic society (a) for the purpose… of maintaining the authority and independence of courts”, we clarify that there is no statutory or case law or rule of law today in Nigeria that prohibits criticism of judges and judgments in the media, in line with this proviso.
In any case, the proviso relates only to provisions of the laws establishing the various courts in Nigeria, and the Rules of Courts, which restrict or prohibit coverage or media report or disclosures of certain court proceedings; for example certain proceedings under the Matrimonial Causes Act and Rules.
In a constitutional democracy, judgments of courts are a product of discharge of public duty, just like a piece of legislation or an executive act, order or policy, which is not and cannot be immune to public criticism. Bills are publicly debated before they are passed into laws, and thereafter the laws so passed are reviewed by members of the public. Legislators are criticized or condemned for making or not making laws.
Executive acts, orders and policies are similarly publicly debated before, when and after they are proposed and implemented. In the circumstances, media criticism of judges and judgment by the learned men of the wig fraternity who have the competence to fairly and constructively criticize judges and judgments, in the public interest, is not inimical to the health of the judiciary, the third arm of government.
It, in fact, enhances the health of the courts. Public praises of judgments are not rejected, and so public condemnation of judgments must be accepted. The attempt to bar public criticism of judgments poses a threat to our collective drive and common desire to expand the democratic space in Nigeria and bring about a more open society. This attempt must be rebuffed.
* Mr. Ogunye, legal adviser to Premium Times published an abridged version of this article in the Punch Newspaper of October 22nd 2012. It is republished to put in proper perspective the public criticism that has greeted the Supreme Court’s decision in Chief Olabode George & 5 Ors v FRN