WINDHOEK – The Namibia Central Intelligence Service (NCIS) under the guise of an appeal against their failure to stop The Patriot newspaper from publishing details about two farms they are utilizing and a residence they own in Windhoek West are asking the Supreme Court to determine whether the media has the legal right to publish information that is prohibited.
In an appeal heard before three judges of appeal in the Supreme Court, the NCIS used the opportunity to ask the court to determine what and if any information the media can publish under the Protection of Information Act, especially section 4(1)(b) which deals with sensitive information. Disguising their intention to muzzle the media through the highest court in the country is an appeal they lodged against an order that was already granted and carried out.
In papers filed with the Supreme Court, the NCIS contend that they are conferred with a statutory duty to protect information that can pose a risk to national security if unlawfully disclosed. “In these circumstances, it cannot be correct in law to suggest that, when NCIS exercised its statutory duties or functions by launching the application (to prevent the Patriot from publishing) it did so to prevent exposure of an alleged corrupt activity,” it is stated.
It further said that given the fact that the Protection of Information Act and the Intelligence Service Act are still in force, the prohibition upon which they relied are still in force to and will remain in force until a competent court of law settles the correct legal position on the effects of the statutory provisions relied upon. In effect it means they want the court to determine what if any information the media can publish about the activities – corrupt or otherwise.
They further argued that given the fact that the High Court did not give a judicial interpretation of the two statues they rely upon – the Intelligence Service Act and the Protection of Information Act – other media houses will continue publishing information that is statutorily prohibited from publication.
According to them, the real dispute between them and the paper remains unsolved, as the court did not judicially determine the real issue which was to determine what information is for public consumption. The real goal in launching the interdict application against the Patriot was for the High Court to give a judicial interpretation of two Acts used by them to protect certain information to reach the broader public.
In the end, they said, it is clearly in the interest of justice to decide the matter once and for all.
For his part, Norman Tjombe stood by his stance that the matter is moot as the articles were already published and the information is in the public domain. He however was adamant that in a Constitutional democracy such as ours, the importance of freedom of expression and the media must be safeguarded at the highest levels. He further said the High Court in its judgement on the matter at hand recognized the importance of the role the media plays in the fight against corruption, maladministration and misadministration. Tjombe further stated that not only has the NCIS “misconstrued their reliance on the Protection of Information Act and the Namibia Central Intelligence Service Act”, but they have not discharged the onus to justify the limitation of the constitutional rights of the media. Deputy Chief Justice Petrus Damaseb and Judges of Appeal Sylvester Mainga and Dave Smuts heard the appeal/application and reserved their judgment. The NCIS were represented by Advocate Vincent Maleka SC assisted by Advocate Dennis Khama and Advocate Mathias Kashindi on instructions of the Attorney General.