The recent Supreme Court judgment in which the Court of Appeal declined an appeal by the Director General of the Namibian Central Intelligence Service (NCIS) is certainly welcomed but limited. The NCIS Boss approached the High Court last year seeking to interdict The Patriot newspaper and its then editor from publishing information relating to the alleged properties of the NCIS. Following the failure at the High Court, the NCIS boss then approached the highest court in the land to review the decision of the High Court. The appeal was also unsuccessful, much to the excitement of many media practitioners. However, the end is not near.
I pause for a moment to commend the NCIS Director General for exploring the available legal avenue in the quest to safeguard what he believed to be lawfully provided-for rights, rather than resorting to some arbitrary actions as witnessed in some jurisdictions. The legal challenge has afforded interested parties an opportunity to hear the courts providing commentary on the operations and activities of the media in the country.
The Supreme Court wasted little time in reminding the NCIS that it was not sufficient for the spy agency to stroll into court and launch “a mere recitation of the sections of the legislation” in an effort to protect certain “classified information” without disclosing same to the court. The court must assess the nature of the information sought to be protected in terms of the law against other constitutionally guaranteed rights such as the right to the freedom of expression and the press. Put slightly differently, the court is not powerless when a state agent claims that national security is threatened, but it is the court that must determine whether the alleged facts and details do indeed warrant the contemplated protection. I therefore associate with the views of my brother Bernhard Tjatjara titled “Weathering the storm? The Case of The Patriot” and published on 17 May 2019, stressing that guidance from the court on what would constitute national security would have been useful. Maybe in an appropriate case, when certain facts are presented before it, guidelines on factors to be considered when determining national security shall be given. Hopefully that day is not far into the future.
The biggest worry for the media fraternity and those wishing to see the full enjoyment of the right to the freedom of expression and the press is that section 4 (1) (b) of the Protection of Information Act (Act No. 84 of 1982) is still part of the Namibian lawbook and the NCIS could place reliance on it any day. The affected party might not be as stubborn and resolute as The Patriot, to take the matter to final adjudication and hence might be threatened into muted silence. Further, definitions given to terms such as “prohibited place” and “security matter”, might have to be revised to factor in on-going anti-corruption drives and the need for enhanced transparency and accountability in the activities and operations of security agencies such as the NCIS. Through its Constitution, Namibia has opted for the protection of national security and subscribing to an open and democratic society, where in fitting circumstances one shall yield for the other.
I therefore call on all interested parties such as the Editors Forum of Namibia and the various media houses to mobilise resources and challenge the constitutionality of section 4 (1) (b), to determine whether the provision has indeed overstayed, following the constitutional dispensation, ushered in on 21 March 1990. The broad nature of the provision, coupled with the definition accorded to some terms might not be consistent with the ideals captured in the Constitution. At present, there appears to be a blanket gag on the disclosure of any matter relating to the activities and operations of the NCIS. Therefore, such disclosure might be held as unlawful, even when it is in the best interest of the public, such as disclosing and exposing corrupt deeds disguised as legitimate activities of the NCIS. This is in view of the fact that there has not been a public attempt by the NCIS to explain how the reported donation to an association of its former employees was made and the legal basis for such donation of taxpayers’ money. This could be rooted in the possible misplaced belief that the NCIS does not owe the public a duty of accountability, especially in relation to how it expends public resources allocated to the spy agency.
It is therefore submitted that the failure of the NCIS in the courts was primarily owing to its seemingly arrogant approach by failing to take the courts into confidence and disclosing the factual basis for the information it sought to suppress from publication. Hence the earlier “own goal” reference. Leaving a real possibility for a properly argued section 4 (1) (b) application to succeed in future, even before the constitutionality of section 4 (1) (b) has been determined.
Simply reporting about legal hurdles relating to the full exercise of the right to freedom of expression and the press year on year is not enough; it is time that these limitations are lawfully challenged and hopefully jettisoned for want of constitutional compliance.