Uganda’s high court has been wrestling with the difficult question of how to balance three sometimes competing constitutional principles when it comes to reporting on divorce cases: the right to free expression claimed by the media, the parties’ privacy rights and the general principle that courts should be ‘open’ and the justice they dispense should be seen to be done.
The need for a judicial balancing act was triggered when an advocate appearing for one of the parties in a divorce due to be heard by the high court, brought an unusual application. He asked the court to hear an ‘anonymous divorce’ in which the parties would be referred to only by ‘special pseudonyms’. The advocate said especially sensitive information would emerge from the case relating to the mental health of at least one of the parties.
There was also a young child who should be protected from publication of the details of the divorce. Further, those involved in the ‘narration supporting the proposed divorce’ included current and/or retired judges who could be affected in their work by media reports of the petition. The judge who heard the application has now agreed to the use of pseudonyms, along with other strict conditions that bar the media from covering the case.
In a sense, Ugandan advocate, Stephen Tumwesigye, was responsible for the new high court decision delivered by a judge of the family division, John Keitirima, after he brought an application to the court related to a divorce matter for which he has been briefed.
Tumwesigye asked the court to agree that everything about the case should be confidential: there would be no indication of the real names of the parties, and the case, when it reached court, would be held entirely in camera. Similarly, the record of the hearing would be subject to a ‘confidentiality order’.
Tumwesigye said he’d been instructed by a ‘male adult Ugandan’ to bring an action against ‘a female adult Ugandan’. He pointed out that normally, high court matters were held in open court and the court record would be a public document accessible by the public.
However, he argued, the proposed divorce involved sensitive facts including ‘bipolar II disorder, depression and suicide’.
At least one of the parties to the proposed divorce petition received ‘mental treatment’, and if there were public documentation of the divorce, this was likely to impair the person’s health.
One of the parties suffered suicidal tendencies due to mental illness, and if there were to be ‘public documentation’ of the proceedings, hearing and judgment, this could further impair the person’s health and could even be a trigger for this party to commit or attempt to commit suicide.
The couple also have a young child who needs to be protected, said Tumwesigye. The child’s ‘growth and development’ was likely to be significantly impaired by public documentation of the divorce proceedings of its parents, and it was in the child’s best interests that the entire matter ‘be sealed’.
Members of the bench
Tumwesigye then turned to professional matters: the parties to the petition were ‘eminent professionals’ in their fields, and public documentation of their divorce was highly likely to ‘impair their ability to discharge their reputations and ability to retain or grow their client base’.
Intriguingly, the petition refers to what Tumwesigye described as the ‘narration supporting the divorce petition’, in other words, the evidence of people possibly beyond the parties themselves. This ‘narration’ involved ‘eminent members of society including current and/or retired members of the bench of this court’, he said. According to his petition, it was highly likely that a public documentation of the divorce proceedings would ‘impair their ability to discharge their official and social responsibilities and/or obligations.’
The orders he requested Keitirima to grant would protect the privacy and sensitive personal information of the parties involved, he said. They would also protect the child from ‘unnecessary media and public attention and scrutiny’, as well as protecting against ‘harm to [the] health’ of the parties, and safeguarding the personal and professional reputation of the parties and others involved. Finally, it would ‘encourage witnesses to be forthcoming and forthright.’
No specific law
In response, the judge said there was ‘no specific law in Uganda that governs applications of this nature.’
But the court had inherent powers to grant remedies that it believed were just, even if, as in this case, there were ‘no clear provisions of the law to refer to’.
Keitirima said that divorce actions were intensely personal, and could involve matters of great significance to those involved, while having little or no effect on the wider public. But the court didn’t have an absolute discretion and good cause had to be established before orders of the kind sought by Tumwesigye would be granted.
In making such a decision, a judge had to balance the principle of open justice against the needs of the parties.
However, Keitirima said, ‘Private facts that have absolutely no impact on the public may be of devastating effect to the parties who want to protect those facts from public knowledge.’ For example, unproven allegations could harm someone’s reputation and damage ‘public trust in the affected party’, while in divorces involving child custody, as would be the case here, ‘anonymity should be granted since much more is at stake for the child’. ‘Traditionally’ the courts had protected the privacy of children: they were ‘innocent parties’ to the divorce disputes and were otherwise unable to protect themselves.
The particular facts that Keitirima quoted as providing weight to the application were that one of the parties was ‘a user of mental treatment diagnosed with bipolar II disorder whose symptoms involve suicidal tendencies’ and the fact that a young child was involved in the ‘complex matter’ of custody.
The judge concluded that, given these circumstances, it was ‘not appropriate for there to be a public record’ disclosing details of what was essential a private matter, and he ordered that the advocate could begin anonymous divorce proceedings before the court. Tumwesigye was to use special pseudonyms for everyone named in the petition to be filed in court. In turn, the court would use the proposed pseudonyms in its orders and decisions, and the petition itself would be heard in camera.
Finally, the record would similarly be treated as a confidential matter and no media would be allowed to cover and report on the proceedings. (Africalii.org)