A : The term sub judice literally means "under judicial consideration," and the rule governs what public statements can be made about ongoing court proceedings. It is part of the law relating to contempt of court.

Imagine a case where, say, someone is alleged to have defiled a minor. Such cases evoke intense emotions and a suspect is likely to be adjudged guilty by the public even before he is taken through the legal process. The media, or politicians seeking cheap publicity normally take advantage of such incidents to further their agenda to the detriment of the suspect’s right to be presumed innocent until proven guilty.

In such scenario, the media and the politicians are no different from those lynch mobs that judge Mungiki suspects and proceed to unleash terror as punishment.

The basis of the sub judice rule is that the courts should deal with legal issues before it and that that role should not be usurped by others making public statements on how those issues should be dealt with. The rule applies where court proceedings are ongoing and through all stages of appeal until the matter is completed.

Accurate reporting

It is the concept of prejudging that is central to the sub judice rule. The rule is deemed to have been breached where public statement risk prejudging matters before court. For instance, statements urging the court to reach a particular result in a case, comments on the strength or weakness of a party’s case or a particular issue or comments on witnesses or evidence in a case.

But one may argue that we read about court cases in the papers daily, yet those cases are nowhere near completion. The sub judice rule does not prohibit fair and accurate reporting of the factual content of ongoing judicial proceedings by the media as long as the report does not usurp the court’s role by suggesting a likely sentence.

As stated above, a breach of the sub judice rule is deemed as contempt of court and attracts punishment. For one to be deemed guilty of breach of the rule, it is necessary to prove that his conduct was intentional.

The words must have been uttered or the material published with the design to prejudice proceedings that are pending or to influence public perception of an individual who is being prosecuted. The penalty could be a hefty fine or imprisonment of up to six months or both.

How does that rule reconcile with the constitutional guarantee of freedom of speech? It has been stated many times that our rights are only such in so far as they do not override other people’s rights. Every right has a corresponding obligation and in this scenario, one will not be heard to argue that he has freedom of speech, which he then uses to overrun a suspect’s right to be presumed innocent until proven guilty.

The sub judice rule is a necessary tool to guard against the trouncing of a suspect’s rights by lynch mobs clothed in media and politician’s skins. One can only imagine what the justice system would be if everybody was free to make their comments about matters pending in court.