WINDHOEK - Three judges of the Namibia Supreme Court dismissed an appeal the Namibia Central Intelligence Service (NCIS) lodged against a judgment of the Windhoek High Court refusing a final interdict against The Patriot newspaper and its editor Mathias Haufiku from publishing a story relating to properties it owns.
High Court Judge Harald Geier refused to interdict the paper and the story ran. It went about the improper use of state resources. At the time, the NCIS relied on the Protection of Information Act 84 of 1982 (PIA), read with the provisions of the Namibia Central Intelligence Service Act 10 of 1997 (NCISA).
Intelligence argued that they have statutory and constitutional powers and duties to protect sensitive information from being published, and maintained that the information sought to be published by The Patriot would compromise the secrecy of the NCIS’s operations and be prejudicial to Namibia’s national security.
The NCIS took the same view – that all they needed to establish was the threatened publication and that it will harm national security and the court was bound to grant an interdict – to the Supreme Court, and in both instances were shot down.
The paper and Haufiku argued that the interdict sought is against Article 21(1) of the Constitution protecting freedom of speech and the press; that the information was not unlawfully obtained; that it was not sensitive information and therefore did not compromise national security and that, in any event, the media has an obligation to expose corrupt activities.
Deputy Chief Justice Petrus Damaseb, who wrote the appeal judgment in concurrence with Judges of Appeal Sylvester Mainga and Dave Smuts, said that although the High Court was satisfied that the NCIS has the constitutional competence to protect sensitive information compromising national security, it highlighted the importance of freedom of speech and the press in an open and democratic society.
“The court a quo held that in this case The Patriot acted responsibly and with integrity by seeking to verify the information obtained from source(s) and to obtain comment thereon from the NCIS before publication,” Judge Damaseb said and continued: “The court a quo was, however, not satisfied that sufficient evidence was tendered to justify the conclusion that the information possessed by The Patriot, and its publication, would harm national security.”
He further said that that the NCIS “placed not a scintilla of evidence before court to show how the manner of acquisition of the information breached any law”. Not only did the government fail to prove that the respondents obtained the information illegally or in breach of the statutory provisions relied upon, the Deputy Chief Justice said, it also failed to show that it related to a secret place or that it concerned a matter of national security.
According to Judge Damaseb, the notion that once the Executive invoked secrecy and national security, the court is rendered powerless and must, without more, suppress publication by way of interdict, is not consonant with the values of an open and democratic society based on the rule of law and legality and that if a proper case is made out for protection of secret governmental information, the courts will be duty-bound to suppress publication. He went on to say that it has been recognised that the court retains a discretion to refuse a final interdict if its grant would cause some inequity and would amount to unconscionable conduct on the part of an applicant.
The appeal was dismissed with costs.