WHAT IS A GAG ORDER? - Welcome to Lumenar's blog

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Wednesday, 3 June 2020

WHAT IS A GAG ORDER?



There are times when a nation will be faced with a highly controversial and high profile case. Cases of this nature have the tendency of sparking public outrage and media trial. In the foregoing circumstance, a judge presiding over such a case may impose a Gag Order on the counsel to prevent any of the counsel from discussing the case subject under any platform except in court and with their respective clients. 

A Gag Order is a protective one especially for the accused person and  is most times ordered "suo motu" by the courts. Basically, a gag order is a rule forbidding the discussion of a case  subject beyond the allowable forum. It usually comes with stringent punishment where there is a case of default. A default of a gag order amounts to a contempt of court.

JUSTIFICATION FOR A GAG ORDER

1. To prevent media trial.

2. To preserve the fair trial rights of litigants.

3. To preserve public welfare, peace and security.

4. To prevent public prejudice during the trial process.

 5. To preserve the mental health and psychological well-being of accused persons.

6. To prevent unscrupulous media stunts.

The Gag Order can also be imposed on the press and media houses to bar them from publishing certain informations.

The major ARGUMENT AGAINST THE GAG ORDER is that contravenes an individual's right to freedom of speech and expression.
In the case of Nebraska Press Association v. Stuart 427 US. 539,532-69,  the Supreme Court created a test for the evaluation of the constitutionality of a gag order. They are as follows;
(a). Whether the publicity that would harm the defendant's right to a fair trial.
(b). If it would be effective.
(c). If it is the least restrictive means possible to ensure fairness 

The Gag Order is prominently used by Courts in the United States. I can't say that the "Gag Order" is a prerogative order in Nigeria courts. Nevertheless, under the Rules of Professional Conduct(RPC) of 2007, Rule 33 states  that ;
"A Lawyer or a law-firm engaged in or associated with the Prosecution and defense 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 reasonably capable of prejudicing or interfering with the fair trial of the matter or judgement sentence"

The forgoing qualifies as a "Gag Order" alongside the hallowed principle of attorney-client privilege as provided for in rule 19 of the RPC. Furthermore, there are instances where the law  permits  trials to be held behind close doors in Nigeria. For instance, juvenile trials so long as the juvenile in question is not being accused of a capital offence or accused with an adult offender for an offence; court martial proceedings, child custody proceedings amongst others.


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