Namibia: SUPREME Court
Namibia’s government cannot use claims of national security and
secrecy to preclude the country’s courts from considering whether
information may be published by the media or not, the Supreme Court
has stated in a landmark judgement on press freedom and the
public’s right to be kept informed.
The court rejected an argument that the country’s courts had to
accept the government’s assertion that information involved
national security and thus had to be kept secret, in a judgement in
which it dismissed on Friday an appeal by the government and the
Namibia Central Intelligence Service against a High Court judgement
that was delivered in June last year.
In the judgement delivered on Friday, deputy chief justice
Petrus Damaseb found that the government and director general of
the NCIS failed to prove that information that the weekly newspaper
The Patriot planned to publish last year had been obtained
illegally, or that the information was about secret places, or a
matter of national security.
Having failed to prove that, the government and director general
of the NCIS did not make out a case for them to be granted an order
prohibiting the publication of an article that The Patriot had in
the pipeline in April last year, the deputy chief justice
found.
The article that NCIS director general Philemon Malima and the
government tried to keep from being published dealt with the
government’s acquisition of two farms and a house that were alleged
to have ended up being used by former members of the spy agency,
and with questionable donations of N$1,1 million that an
association of former spy service members received from the
NCIS.
The government and the NCIS chief appealed to the Supreme Court
after High Court judge Harald Geier in June last year dismissed
their application for an interdict to stop The Patriot from
publishing an article about the alleged misuse of public funds by
the spy service.
In his judgement, judge Geier also ruled that the NCIS could not
rely on a blanket cover of secrecy to avoid being subjected to
judicial oversight.
In the Supreme Court’s appeal judgement, deputy chief justice
Damaseb said the court did not agree with the government’s argument
that a court did not have the power to override the government and
NCIS’ designation of something as secret and a matter of national
security. He stated: “The notion that matters of national security
are beyond curial scrutiny is not consonant with the values of an
open and democratic society based on the rule of law and
legality.”
However, he added, the courts would have a duty to protect
secret governmental information if a proper case had been made out
to keep such material confidential.
In the case the court was dealing with, though, the government’s
argument that the publication of information relating to the NCIS
had to be suppressed without exception, even if that information
would expose a crime, could not be sustained, judge Damaseb
said.
With appeal judges Sylvester Mainga and Dave Smuts agreeing with
the deputy chief justice’s judgement, the court dismissed the
appeal of the government and NCIS director general with an order
that they should carry The Patriot’s legal costs.
Senior counsel Vincent Maleka, together with Dennis Khama and
deputy government attorney Mathias Kashindi, represented the
government and the NCIS when the appeal was heard in March. Norman
Tjombe represented The Patriot.