The presumption of innocence in criminal law and the court of public opinion in South Sudan

By Juliet Yaiya Mang’ok Kuot, Juba, South Sudan

Thursday, September 10, 2020 (PW) — In this digital era, news travel almost as fast as the speed of light. It is no surprise that any crime that takes place anywhere around the world can receive attention from all over the world. This then attracts the opinion of the general public as to the guilt or innocence of the accused person, popularly known as the court of public opinion before the person goes through the judicial process to determine his or her guilt.

The court of public opinion ‘means the beliefs and judgment of most people’. Presumption of innocence is the principle that an accused person is not presumed guilty until guilt has been proved in the legally established manner.

We have seen many cases of crimes whereby the public has already convicted the accused person of the crime but the verdict turns out later in favor of the accused to the dismay of the general public. This has even led some people to question the credibility of the justice system. I will give a few examples here.

Let’s look at the case of OJ Simpson. This was a criminal trial of a former American college and professional football star who was acquitted of the murder of his ex-wife and her boyfriend in 1995. The prosecution seemed to have a good case, many facts supporting the charge of murder against Mr. Simpson.  They largely relied on domestic violence that had occurred before and after their divorce as motive of the murders, while the defense team largely relied on the grounds that evidence had been mishandled and that many of the los Angeles police department were racists, particularly the detective who allegedly found a bloody glove at Simpson’s home with the blood from both the deceased and the accused.Those gloves appeared to be too small when the accused tried them on in court. 

Just across our borders in Kenya, we have the case of TobCohen, although still unresolved has the same storyline. A Dutch billionaire based in Kenya and who had married a Kenyan lady who happens to be the main suspect in the murder of her husband. The trial hasn’t even begun yet but the general public opinion has largely judged her as guilty. 

Closer home, we had the case of late Lual marine an army general who allegedly used his power as an army general to grab people’s land and bully people. The last altercation turned bloody. It was a dispute arising from disagreement over land that has claimed not only his life but of many otherinnocent civilians who had no part in that dispute. The public was furious and the judgement from the court of public opinion was definitely against Lual marine as the killer of those innocent civilians. Whether he did it himself, by his direction or it was his bodyguards who did it without his directions, according to the court of public opinion the verdict is the same.

There is also the case of the three slain children brutally murdered at their home in Juba while their parents were away, this case was widely discussed on social media and it didn’t take long before the suspect was identified allegedly as their father’s ex-wife, the ex-wife though not identified received a lot of condemnation across social media only for the South Sudan police to identify a male university of Juba medical student as the prime suspect, a relative to the slain innocent children.

What then is the danger of court of public opinion? I mean the justice system is slow and the facts speak for themselves in such cases, right?.

The court of public opinion might do more harm than good.Asmuch as we must exercise our freedom of speech and expression as enshrined in the constitution we have to be careful not to do more harm, than has already been done by the crime committed. The constitution of South Sudanprovides for the right to a fair trial, an accused person is presumed to be innocent until his/her guilt is proved according to law.

Presumption of innocence must be protected. It is one of the principles that underpins the justice system. It is a norm under customary international law and protected under various international treaties and domesticated under many national constitutions and their relevant legislations. The provision of fair trial is an essential procedure in the justice system that any ounce of irregularity in procedure would grant the appellant a mistrial in appeal.

The famous quote by Lord chief Justice Hewart when he instructed that justice should be seen to be done. According to a report on presumption of innocence, there arekey threats to the presumption of innocence and the possible solutions.

They include: (1) Prejudicial statements normally comments/statements made by public implying the guilt of the accused especially where there is major public interest in the case. (2) Press coverage the media is a very powerful tool with regard to relaying information to the public and even have influence on the presumption made by the public as to the guilt or innocence of the accused based on how they make the report.

Presentation of suspects in court and in public this includes parading of suspects in restraints before the public and the media and during their transfer to and from courts. Their suggestions on possible solutions included thea) Clear regimes provided to prohibit public officials implying guilt of a suspect.b) Training for journalists on presumption of innocence to help them understand the complexity of the issue and the impact that their reporting can have.c) Mandatory training for legal aid lawyers, so that only journalists who have undergone training on such issues should be allowed to cover criminal proceedings.d) Robust legal regime should be put in place to regarding how suspects are presented in public limit the use of restraint and limit suspect’s exposure to the public and the press.

Public opinion can be used for good and ensures the following: (1) Transparency, (2) Cooperatively formed norms and (3) Shines light on miscarriage of justice

The dangers of public opinion (1) Wedging and polarization (2) Death of complexity. People are forced to choose simplistic ‘sides’ complex issues are reduced to binary choices (3) The substitution of opinion for fact. Facts are normally complex. But a yes or no answer is required immediately. The public goes with a fact or opinion or gut.

Bruce schneier opined that, ‘the court of public opinion is an alternative system of justice. It’s very different from traditional court system. This court is based on reputation, revenge, public shaming and the whims of the crowd. Having a good story is more important than having the law on your side. Being a sympathetic underdog is more important than being fair, facts matter but there are no standards of accuracy. The speed of the internet exacerbates this; a good story spreads faster than a bunch of facts.

In a nutshell, my point is that as much as public opinion has its merits with regards to guarding against injustices that could otherwise be occasioned to victims of crime, we must  also ensure  that the principles of innocence until proven guilty and that of fair trial are upheld, violation of which could also lead to another injustice should we publicly and sometimes legally convict an innocent person, this will also lead to erosion of the credibility of the justice system if they cannot render fair trial. The victims of these heinous crimes deserve justice but justice against the right perpetrator. 

You can reach the author via her email Contact: yaiyabol@gmail.com

About Post Author