By Steven L. Mukwena
An allegation is made. A name and photograph appear on social media. Within hours, screenshots are circulating, commentators are reconstructing events, and strangers who have neither seen the evidence nor heard the other side are expressing certainty about what happened.
Sometimes the person concerned has not yet been charged and in some instances an investigation is still underway.
Yet, for many observers, the case has already been decided.
The law may still regard that person as innocent however the public may already regard that person as guilty.
This tension raises a constitutional question that deserves greater attention in Namibia: what is the practical value of the presumption of innocence when an accused person can be publicly convicted long before a court determines guilt?
The question has become increasingly important in an age in which Facebook, X, TikTok, WhatsApp and other digital platforms have fundamentally changed the speed at which allegations enter the public domain.
Social media has democratised access to information and created important platforms for exposing wrongdoing.
But it has also created something our constitutional framework was not designed to encounter in its present form: a permanent, instantaneous and largely unregulated court of public opinion.
Presumed innocent according to law
The starting point is the Namibian Constitution.
Article 12(1)(d) provides that all persons charged with an offence shall be presumed innocent until proved guilty according to law, after having had the opportunity to call witnesses and cross-examine those called against them.
Those words matter.
They recognise that guilt is not established by accusation, arrest, suspicion or public opinion. It is established through a legal process in which evidence is produced and tested and the prosecution bears the responsibility of proving the charge.
The Supreme Court dealt directly with the constitutional importance of this principle in Attorney-General of Namibia v Minister of Justice and Others. The case concerned statutory provisions that shifted aspects of the burden of proof onto an accused person.
The Court reaffirmed the presumption of innocence as a fundamental part of the right to a fair trial in ruling that the impugned reverse-onus provisions were constitutionally impermissible.
The Court’s recognition that a criminal charge has consequences well beyond the courtroom was particularly relevant in today’s digital environment.
A person accused of criminal conduct may face loss of liberty, social stigma, ostracism and other social, psychological and economic harm.
Social media has magnified those consequences. Today, stigma does not necessarily wait for conviction. It may begin with the first post.
Innocent in court, guilty online
This exposes an uncomfortable gap between constitutional principle and social reality.
A court can insist that the prosecution prove guilt beyond reasonable doubt. It can exclude inadmissible evidence. It can hear both sides. It can permit cross-examination. It can ultimately acquit an accused person.
But a court cannot easily restore a reputation destroyed months earlier.
A person may therefore remain presumed innocent before the law while simultaneously being treated as guilty by employers, colleagues, neighbours, clients and the wider community.
That is the constitutional cost of trial by social media.
The presumption of innocence protects the accused within the criminal process. It does not mean that every citizen commenting on Facebook assumes the constitutional duties of a judge. Nor should Article 12(1)(d) be stretched beyond its proper legal meaning.
But the values underlying the presumption, fairness, dignity and restraint before judgment should matter to a constitutional society beyond the physical walls of a courtroom.
This is also where the work of Ronald Dworkin, a leading legal philosopher and scholar of constitutional rights, becomes relevant.
Dworkin famously argued that individual rights operate as “trumps” against claims based simply on what the majority considers desirable. In other words, fundamental rights should not be set aside merely because their protection is unpopular or inconvenient.
The point becomes particularly important when an accused person has already become deeply unpopular. Constitutional rights would mean very little if they protected only those whom society was willing to protect.
The presumption of innocence must therefore do its work precisely when public opinion is moving in the opposite direction. A serious allegation, widespread anger or even an overwhelming public belief in a person’s guilt cannot substitute for proof.
The accused may be unpopular, and the accusation may be disturbing, but neither circumstance changes the constitutional starting point: guilt must still be established according to law.
If we accept that criminal accusation can cause serious reputational and social consequences, then we should also ask whether those consequences ought to be imposed before the allegation has been tested.
An accusation is not evidence
One of the dangers of social media is the ease with which the burden of proof becomes reversed.
The question quickly changes from “Has this allegation been proved?” to “Why does the accused not prove that he or she is innocent?”
Constitutionally, that is the wrong starting point.
The State accuses; the State must prove.
The same principle has received strong recognition in South Africa. In S v Zuma and Others, the Constitutional Court dealt with a provision that effectively required an accused person to disprove part of the case against him.
The Court found this difficult to reconcile with the presumption of innocence. The starting point in a criminal trial remains that it is for the prosecution to prove guilt beyond reasonable doubt.
There is a simple reason for this. Being accused of a crime and being proved guilty of it are two very different things. Social media has made it increasingly easy to forget that distinction.
Social media, however, does not operate according to rules of evidence. A screenshot may be accepted without knowing its origin.
A short video may circulate without what happened immediately before or afterwards. A voice note from an unidentified person may suddenly be treated as corroboration. Repetition can then create the impression of verification.
After a few hundred shares, the question of whether the original allegation was ever established may almost disappear.
But popularity is not proof. Neither is virality.
Freedom of expression also matters
There is another side to the constitutional equation.
Article 21(1)(a) of the Namibian Constitution protects freedom of speech and expression, which includes freedom of the press and other media.
Any serious discussion of social media trials must therefore resist the temptation to suggest that criminal allegations should not be discussed publicly. That would go too far.
The media has an indispensable role in a constitutional democracy. Investigative journalism can expose corruption and abuse. Social media has enabled victims and whistle-blowers to speak when established institutions have failed them. Public scrutiny can itself strengthen accountability.
The constitutional question is therefore not whether people should be allowed to speak. It is how freedom of expression coexists with fairness, dignity and the proper administration of justice.
Namibian courts have also cautioned against allowing public opinion to influence the judicial determination of criminal proceedings.
In S v Gustavo, a bail matter arising from the Fishrot case, Oosthuizen J made it clear that social media opinions, public gatherings and demonstrations should not become the measure of public interest for purposes of a court’s decision.
He accepted that people are entitled to express their views and demonstrate under Article 21 of the Constitution. But that public reaction is not what should decide the case before a court.
I think that distinction has become even more important today. There is nothing wrong with the public being angry about an alleged crime, particularly where the allegations are serious. People are entitled to speak, protest and demand accountability.
But a large crowd, a trending hashtag or thousands of angry comments cannot prove a criminal charge. Public outrage may tell us how people feel about a case. It does not tell a court whether the accused is guilty.
This does not diminish freedom of expression. It simply recognises that public opinion and judicial determination serve different purposes.
Comparative jurisprudence provides useful guidance.
In the South African case of Multichoice (Pty) Ltd and Others v National Prosecuting Authority and Another, arising from applications to broadcast the Oscar Pistorius trial, the High Court had to balance media freedom, open justice and the accused’s right to a fair trial.
The Court recognised the legitimate public interest in following criminal proceedings and permitted significant media access. But it also issued an important warning. There remained only one court entrusted with analysing the evidence and passing judgment. The Court cautioned that tendencies towards “trial by media” could undermine both the proceedings and the administration of justice.
That distinction is crucial.
Open justice is not the same thing as parallel justice.
The public has every right to observe, report on, discuss and criticise criminal proceedings. But the authority to determine criminal guilt remains with the court.
Taking victims seriously without declaring guilt
The presumption of innocence must also never become a slogan used to silence victims. That is particularly important in cases involving gender-based violence, sexual offences and other crimes where complainants may already face enormous barriers to reporting. To say that an accused person is presumed innocent is not to say that a complainant is lying. These are different propositions.
A complainant deserves to be heard, treated with dignity and protected from intimidation. An accused person is entitled to have guilt determined according to the law. A mature constitutional system should be capable of protecting both interests at the same time.
We therefore do not have to choose between “believing victims” and “presuming innocence” as though one necessarily destroys the other. An allegation can be treated seriously without being treated as judicially established fact.
Indeed, social media trials can also harm complainants. Their identities and private information may be circulated. Their statements may be dissected by strangers. They may be subjected to harassment or counter-accusations. Witnesses may encounter versions of events online before giving evidence.
Responsible restraint therefore protects more than the accused. It can protect victims, witnesses and ultimately the integrity of the criminal process itself.
But can social media actually prejudice a court?
There is an important counterargument.
Namibia’s criminal trials are generally determined by trained judicial officers, not juries. Judges and magistrates are expected to decide cases on the evidence presented in court, irrespective of public commentary.
Kenyan courts have confronted a similar question. In Tom Odhiambo Ojienda SC v Director of Public Prosecutions & 3 others, Ojienda challenged, among other things, the publicity that surrounded his arrest and intended prosecution. He argued that it had implications for his presumption of innocence and his right to a fair trial.
The High Court did not agree with him on this point. It referred to earlier Kenyan decisions and made the point that criminal cases in Kenya are not decided by juries, but by judicial officers who are trained to decide cases on the evidence presented in court. The publicity surrounding a case would therefore not, without more, mean that an accused person could no longer receive a fair trial. On the facts before it, the Court was not satisfied that Ojienda’s rights had been violated in this respect.
I find this distinction very important. The fact that a case is being discussed all over social media does not necessarily mean that the judge or magistrate hearing it will be influenced by that discussion. Judicial officers are expected to put such commentary aside and decide the case before them.
But my concern goes beyond what happens to the judicial officer.
What happens to the accused person while all of this is taking place? The judge may not have been influenced at all, yet the person’s name, photograph and the allegations against him or her may already have circulated thousands of times. Colleagues may have formed their conclusions. An employer may have reacted. Friends and family may have been affected. The person’s reputation may already have suffered.
A later acquittal does not necessarily undo any of that. This is where I believe the real difficulty with trial by social media lies. A person can receive a perfectly fair trial in court and still have been tried, convicted and, in a very real sense, punished in public long before that trial is concluded. The constitutional cost of a social media trial may arise without influencing the judge at all.
A judicial officer may conduct an impeccable trial and ultimately acquit the accused. Yet by then the accused may have lost employment, business relationships, friendships and standing in the community.
A court can return a verdict of not guilty. It cannot order the internet to forget.
When the court disagrees with the public
This creates another difficulty.
What happens when social media has already convicted someone, but the court subsequently acquits that person? Increasingly, the immediate assumption may be that the justice system has failed. Courts are not beyond criticism. Judgments should be scrutinised, debated and, where appropriate, strongly criticised. That is part of constitutional democracy.
But criticism should engage with what the court actually decided and why. The public may have watched a thirty-second video. The court may have heard weeks of evidence. The public may have read an accusation. The court may have heard the complainant cross-examined, considered forensic evidence, examined documents and heard the defence.
An acquittal does not necessarily mean that nothing happened. It means that criminal guilt was not established to the standard required by law. That distinction is sometimes difficult, but it is fundamental.
If we reach the point where a court judgment is regarded as legitimate only when it confirms the verdict already reached on social media, then the constitutional process has effectively been reversed. The court becomes an appeal tribunal from the court of public opinion. That cannot be what constitutional justice means.
The language we use matters
Perhaps one of the simplest responses lies in how allegations are communicated.
There is a reason responsible reporting uses words such as “alleged”, “accused”, “suspected” and “charged”. They are not meaningless legal qualifications. They distinguish accusation from adjudication.
There is a significant difference between saying that “a person has been charged with fraud” and saying that “the person stole the money”. The first reports a fact about legal proceedings. The second declares the very conclusion the criminal trial may still have to determine.
The same responsibility should increasingly inform how ordinary users communicate online. Every person with a smartphone now possesses something previous generations largely associated with newspapers and broadcasters: the ability to publish instantly to a potentially enormous audience. With that power should come some appreciation of consequence.
A constitutional culture beyond the courtroom
The Namibian Constitution cannot prevent every irresponsible post. Nor should constitutional rights become an excuse for policing every opinion expressed online.
The deeper question is about constitutional culture. The presumption of innocence is legally enforceable within the criminal justice system. But the principle also expresses an idea worth carrying into public life: judgment should follow evidence, not precede it.
Freedom of expression deserves protection. So does human dignity. Victims deserve to be heard. Accused persons deserve a fair trial. The media must be able to scrutinise the justice system. And courts must remain open to criticism.
These principles are not mutually exclusive. Constitutionalism requires us to hold them together even when doing so is uncomfortable. The danger of trial by social media is therefore not that citizens have opinions about criminal cases. An engaged public is indispensable to democracy. The danger begins when opinion assumes the authority of judgment; when allegation becomes proof through repetition; and when punishment begins before guilt has been established.
The Constitution may continue to presume an accused person innocent. The judge may continue to approach the evidence with an open mind. The prosecution may still carry the burden of proving guilt. But outside the courtroom, the accused may already have lost a career, reputation, relationships and standing in the community.
And therein lies the constitutional paradox of the digital age:
presumed innocent according to law, but publicly convicted long before judgment.
Steven L. Mukwena holds an LLB (Honours) degree and is currently pursuing an LLM by Research at the University of Namibia. He writes in his personal capacity.
