19 June 2018

Namibia: Media Freedom Trumps Secrecy

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Namibia's national spy service cannot rely on a blanket cover of secrecy to avoid being subjected to judicial oversight, a High Court judge stated in a landmark judgement on the issues of media freedom, the public's right to be kept informed, the protection of national security, and the rule of law yesterday.

A stance that the actions of the Namibia Central Intelligence Service (NCIS) should not be subjected to any judicial oversight must be rejected, judge Harald Geier said in a judgement in which he dismissed an attempt by Namibia's government and the director general of the NCIS to prevent a weekly newspaper from publishing an article about the alleged misuse of government properties by former members of the spy service.

"The NCIS operates in the context of a democratic state founded on the rule of law, which rule subjects all public officials and all those exercising public functions, whether openly or covertly, in the interest of the state, to judicial scrutiny," judge Geier stated.

This judicial oversight would also extend to all operatives and functionaries of the NCIS, he added.

"The agency [NCIS] has been established to serve the state, and thus remains accountable to the judiciary," judge Geier stated.

He made the remarks in a judgement that ended in the dismissal of an application by the government and NCIS director general Philemon Malima for an interdict forbidding the weekly newspaper The Patriot and its editor, Mathias Haufiku, from publishing an article about properties allegedly being used by the NCIS after being bought by the government, and about the donation of N$1,1 million by the NCIS to an association of former spy service members.

Judge Geier noted that the planned article was intended to expose alleged corruption and the misuse of public funds.

While the argument on behalf of the NCIS chief and the government was that the Namibia Central Intelligence Service Act of 1997 and the 1982 Protection of Information Act both prohibited the possession and publication of information in the article, judge Geier said in his view, the provisions of the law can and should never be used for any illegal purpose or to cover up unlawful or potentially unlawful activity.

"This would clearly go against the grain of all legal principles, and would be against what the law is intended to achieve and would negate all that the law stands for," he said.

"Genuine and bona fide attempts at exposing corrupt activity should simply not be stifled."

Judge Geier also noted that, since the application of the government and NCIS director general was filed in the Windhoek High Court two months ago, the case received broad publicity in the media, and the information that the two applicants tried to keep from being published has in any event gone out into the public domain.

He indicated that in such circumstances, it would be senseless for the court to try to deny the Namibian public the right to be informed more fully about matters that have already been communicated in the media and in the public court record of the case.

Haufiku stated in an affidavit filed at the court that the planned article would deal with the government's acquisition of two farms and a house now allegedly being used by former members of the spy agency.

The farms in question, both in the Otjozondjupa region, were allegedly bought in 2015 at a total cost of N$57 million, while the government bought the house, situated in Windhoek, for an alleged inflated price of N$8,2 million in 2016, Haufiku said in his affidavit.

Although the properties were bought by the government and the farms were supposedly acquired for the land redistribution programme, they are now being used by a private organisation, the Association of Former Members of the Namibia Central Intelligence Service, which is also alleged to have received questionable donations of N$1,1 million from the NCIS, Haufiku said.

The information intended to be published would not fall within the scope of sensitive or classified information protected by the law, judge Geier also found.

He ordered that the government and the NCIS director general should pay the legal costs of The Patriot and Haufiku, who were represented by lawyer Norman Tjombe. Dennis Khama and deputy government attorney Mathias Kashindi represented the two applicants.

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