Malawi’s high court judge Zione Jane Veronica Ntaba is no stranger to controversy. Among her decisions she found her country’s Chief Justice, Andrew Nyirenda and the whole of the Malawi Judicial Service Commission had acted irregularly, illegally and unconstitutionally. Now she has made another noteworthy decision, turning down a request to have the second half of a potentially sensational trial broadcast by the Malawi Broadcasting Corporation. Here’s the background – and her reasons.

Read the judgment

One of the most gripping legal matters in Malawi is the trial of 12 accused charged with murdering Macdonald Masambuka, 22. Masambuka went missing last year and his body was eventually found several weeks later, dismembered and buried.

Among the 12 accused are a Catholic priest, a member of the police and a hospital worker. At the time of their arrest last May, Masambuka’s murder was said to be the 22nd such killing of an albino person in just four years. The Association of People with Albinism in Malawi says only five of the 22 murders has resulted in a trial, and that it has recorded 146 attacks on albino people since 2014. The ritual murders have sparked repeated calls for those found guilty to face the death penalty, while the country’s president, Peter Mutharika, has asked for the country to debate the issue. It is widely believed that the murders are organized by criminal gangs who sell body parts.

Against this fraught background Judge Zione Ntaba, presiding in the Masambuka murder trial, has been faced with some related issues. The department of prisons ignored an order she made last year for all the accused to be transferred to the Zomba Central Prison. Commenting on the department’s defiance of her order she is quoted as saying it was a “contemptuous move”. She then made a second order that all the suspects are to be returned to Zomba Central, and set 6 May 2019 as the date for the trial to resume.

The second issue, and one that has caused far more publicity, is an application by the Malawi Broadcasting Corporation (MBC) for permission to broadcast either audio and visual material from the trial, alternatively just audio recordings.

The MBC said the trial raised the whole issue of the killings and abduction of people with albinism and that there was considerable public interest in the proceedings. Only a handful of people could fit into court, however, and not everyone in Malawi had access to printed and electronic media reports and that these reports were often inaccurate and delayed.

The state described the application as “novel” and argued that judges hearing a case that was being broadcast might feel encouraged “to act in a way which might be seen as playing to the camera”. Alternatively, they might feel pressurized by public opinion into making a particular decision or passing a particular sentence. They were also concerned that no participant in a trial should be put off by the presence of broadcasters and cameras.

Lawyers for the defence said the MBC was acting in bad faith by only bringing the application at this stage, when the defence was about to present their evidence, while the state’s evidence was not covered by the broadcaster “whatsoever”. To allow live coverage at this stage would mean viewers would not have seen or heard both sides of the story.

“The (MBC) never beamed the prosecution’s case. State witnesses were never subjected to the extra pressure of having to testify live on national TV and radio. To subject the accused only to such scrutiny amounts to procedural unfairness.” The legal team also stressed that the security of the accused would be jeopardized if the trial were broadcast live.

In her decision, Judge Ntaba said she appreciated the MBC application because it added to the debate about its role in Malawi’s democracy. She acknowledged the freedoms enshrined in the constitution that affected the media as well as media obligations spelled out in other law. The court was pleased that the MBC was taking seriously its role to report on the continued abduction and killing of people with albinism. “The more a public broadcaster with national coverage raises … these issues, as a country, we might begin to see changes that we as a nation … are hoping for.”

She criticized the MBC, however, for its submission that other media, printed and electronic, had produced “misleading” reports, while the MBC would not do so. “Such disparaging statements on other media is uncalled for and not in good taste.”

She said she was concerned that there would be no “safeguards” if statements were made in court that the judge ordered to be disregarded or to have withdrawn. Though such statements would be struck off the record, they could find their way into the public and remain there “for perpetuity”.

The trial had been open to the media from the start, and the MBC could have attended like other members of the media but did not do so, and thus its application at this stage was “rather surprising”.

It was her “considered opinion” that allowing the MBC request “will definitely interfere with the proceedings which have reached an advanced state and which is the most critical one in terms of the right to fair trial” for the accused.

The MBC had a statutory duty to inform Malawians on issues of national interest, such as the abduction and killing of people with albinism. However, they made the application only after the state had led evidence and so the public would not have had access to the initial part of the trial via the MBC.

Her concluding remarks explains her thinking even further: “Let me state that this ruling should not be misunderstood to suggest that the court may not, in appropriate cases, grant such an application. This application was dealt with in the circumstances that were prevailing …, which was an application to be allowed live broadcasting after the state had finished its case…. It is this court’s considered opinion that courts in Malawi are amenable to allowing such requests, for example in cases involving election involving a presidential dispute. Such an application may … be granted as was the case in Kenya because the whole country is a directly interested party.”

Speaking as a journalist, with experience of live coverage of high profile trial, I have a couple of questions in the wake of the decision. Why did the MBC only bring its application so late in the proceedings, particularly if it is correct that the MBC did not even cover the first half of the trial in the normal way? But I also wonder whether the judge considered compromises that would not have undermined her concern for a fair trial. I am thinking, for example, of whether it might have been possible to allow judgment on conviction and sentence to be broadcast, only via audio perhaps, so that at least radio listeners would have access to the actual words of the court in this final stage when the judge would presumably have her say on the prevalence of such killings.

  • Newsletter, Judicial Institute for Africa (Jifa), 11 April 2019