15 April 2019

Namibia: Supreme Court Affirms Judicial Oversight

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.

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