Case Summary and Outcome

The Supreme Court of Namibia upheld a High Court ruling which rejected a Government request to ban the publication of a news article on national security grounds. The Government sought to prevent the Patriot newspaper from publishing an investigative report that revealed a misuse of public funds by the Namibia Central Intelligence Service.  The Court found the Government failed to provide “ a scintilla of evidence” that the information was obtained illegally or in breach of any statutory provisions, or that it could compromise national security. Dismissing the Government’s arguments, the Court affirmed that national security claims were subject judicial scrutiny and concluded that the requested prior restraint would violate “the values of an open and democratic society based on the rule of law and legality.”

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Facts

The case concerned an appeal against a High Court judgment which rejected an urgent request for an interdict to ban publication of a news article pertaining to alleged Government corruption on national security grounds. The appellants included the Director General (DG) of the Namibia Central Intelligence Service (NCIS) and the Government of the Republic of Namibia (GRN), henceforth referred to as the “Government.”

The respondents included Mr. Haufiku, an investigative journalist, and his editor at the Patriot newspaper. The Patriot is available both online and in print.

Based on a tip-off, Mr. Haufiku conducted an investigation into properties (farms and houses) allegedly owned by the NCIS. A search of public records at the Deeds Registers Office and the e-justice database revealed that one farm and one house were purchased by the Ministry of Lands and Resettlement for use by “deserving landless Namibians,” however the properties appeared to be occupied by members of an association (the Association) for former NCIS employees.

Haufiku then obtained written minutes of the governing board of the Association, that documented it was funded by N2 million of tax-payer dollars donated by the NCIS without the knowledge of or authorization by the DG or the President of the Republic.

For the investigative article, Haufiku needed to verify the relationship between the NCIS and the Association, whether the NCIS in fact funded properties and if so, what national interests justified the purchases in light of the country’s difficult economic circumstances.

On 10 April 2018, Mr. Haufiku contacted Mr. Likando, the director of the NCIS, via SMS asking if he would be willing to answer some questions relating to the properties and the Association. He also informed him that the article was scheduled to be published within in a few days time.  He was careful to reassure Mr. Likando that the article would not disclose the location of the properties in question, nor the names of any NCIS current or former staff members.

Mr. Likando referred the request to Mr. Mathias Kashindi of the Government Attorney’s Office.

Mr. Kashindi replied to the SMS request, informing Mr. Haufiku that he should be the point of contact on matters relating to the NCIS. However, he was prohibited by law to answer the questions about the properties as the information requested was classified or sensitive and that Haufiku’s “possession, disclosure, and or publication of that information [was] prohibited” under provisions of the Protection of Information Act 84 of 1982 (PIA) and the Namibian Central Intelligence Service Act 10 of 1997 (NCISA).  [p. 8] Further, since the DG had not authorized the possession of the information held by Haufiku, NCIS was of the opinion that it was obtained unlawfully. Publication, he asserted, would jeopardize national security as it would reveal “NCIS’s operations, means and capabilities.”  He also stated that he could not comment on the questions about the Association since it was a separate entity.

The Government claimed it had “the statutory and constitutional powers and duties” to prevent the release of sensitive information on national Security grounds. To that end, it sought an urgent court order banning the publication of any information relating to the properties and assets of the Namibia Central Intelligence Service, that fell “within the scope of sensitive matters as defined in section 1 of the [PIA], any classified information as defined in section 1 of the [NCISA], and any information obtained by the respondents in contravention of the aforementioned provisions.” (p. 11)

Mr. Haufiku argued that the information was obtained lawfully from public databases, did not jeopardize national security or expose the operations of the NCIS. As the investigation was on an issue of public significance, it was protected speech and a ban on its publication would ‘“blatantly violate” the right to freedom of expression, including freedom of the press guaranteed by Art. 21(1)(a) of the Constitution.” (p. 11)   Moreover, Haufiku argued that the media has a responsibility to inform the public of potential corruption by government officials and therefore such revelations could not violate the PIA or the NCISA.   The Association, a private entity, appeared to be funded by public money which “seemed contrary to law.” (p. 13)

The Patriot agreed to hold off on publication pending judicial review

The High Court Dismissed the application with costs. In its ruling, the High Court rejected the Government’s claim that the courts had to respect the “statutory discretion” given the executive “not to disclose in court proceedings information that can prejudice national security” and to “suppress publication by persons possessing such information”. While the Court recognized that national security concerns can, under certain circumstances, justify limited restrictions on the fundamental freedom of expression guaranteed under Art. 21(1)(a) of the Constitution, in the instant case, the Government failed to provide sufficient evidence to prove that the publication of the information would undermine national security.

The High Court affirmed the important role journalism plays in an open and democratic society and found that Haufiku had appropriately abided by the Namibian the Code of Ethics for the media which requires journalists to vet their sources and verify the accuracy of their reporting before publication.

Contrary to the Government’s claim, since the information was already publicly available on the e-justice database, the court found it was obtained lawfully, could not be considered classified or fall under the scope of the PIA. Moreover, since the information was available online, a ban would be ineffective and there could be no claim for related harms from its publication, which all rendered the matter effectively moot. The Court specifically noted that the PIA could not be used as a shield for corrupt practices, on the grounds that would be “tantamount to a criminal approaching the courts for assistance to cover up illegal activity or to prevent the exposure of possible illegal activity.” (p. 15) Therefore, the Court found that any prior restraint on the publication of the information would negatively impact the public’s right to be informed on an issue of significant importance, namely corruption.

The Government appealed the case to the Supreme Court of Namibia.

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Decision Overview

The Supreme Court first addressed whether the government had made a case for the ban. It clarified that in the present case, the Patriot, contrary to the Government’s contention, was not “compelling” the NCIS to reveal sensitive information as the information was already publicly available. The onus therefore fell on the government to provide evidence that they have a clear right in need of protection, based on well grounded fears of a national security breach, rather than on supposition, and that no other remedy was available.

The Court next reviewed the statutory provisions relied on by the government in detail and disregarded those that did not apply to the present case. Based on this review the Court affirmed that the PIA “outlawed the possession or disclosure of information which has been unlawfully obtained.” (p.24) In light of this, the Court found it was under no obligation to ban a publication simply based on the invocation of national security concerns by the Government. Any evidence of true national security threats to justify the ban, should have been presented to the Court in camera for judicial consideration.

The Court then addressed the question of mootness. In the first instance, the High Court found the claim that publication of the information could result in a compromise of national security was moot as the information was already publicly available through e-justice. In the second instance, the Supreme Court agreed that the appeal was warranted, despite the public availability of the information, “as the issue raised was of immense public importance to guide future conduct.” (p. 28) Since the impugned information had not yet been published and was hence still a “live issue” the court set aside the mootness argument and again focused on whether the Government had made a sufficient case for the ban.

For the Supreme Court, a key question was whether national security claims were beyond judicial scrutiny.  The Court acknowledged that there was a legitimate concern for secrecy in government matters, as well as in court proceedings, and if a reasonable case were made for protecting government held information, the Court would be duty bound to order its protection. The Court, however, asserted that it did not agree with the arguments put forth by the government that it must defer to the Executive based on unsubstantiated claims of secrecy and national security, because to do so would not be consistent with the “values of an open and democratic society based on rule of law and legality.”  (p. 29) The Court re-iterated that the Government must present sensitive evidence to the Court in camera for consideration, even pertaining to information already publicly available through the e-justice database.  Publications concerning allegedly sensitive information, however, must be suppressed until the Court has authorized its release, or be subject to criminal sanction for contempt.

The Court considered that the impugned information fell into two categories, relating either to the Association or to the properties. The Court found that the Government was not in a position to request the suppression of information relating to the Association since Mr. Kashindi confirmed in his correspondence with Haufiku that the Association was a separate entity, which was in effect a denial of any relationship between the NCIS and the Association.

Regarding the properties, the Court distinguished between the Government’s right not to disclose information and its right to prevent publication of information that falls under the scope of prohibitions under the PIA and NCISA. (p. 32) The Court found the Government’s arguments were flawed on the grounds that it failed to make this important distinction in its formulation.

In the present case, the Government bore a greater burden to produce evidence for suppressing publication of information relating to the properties which “by all appearances were not of a secret nature and their use on the face of it suspect,” based on allegations that “persons who were not so entitled received public funds and occupied public property.” (p. 35) The Court reiterated that the Government produced no evidence that the Patriot obtained or possessed the information in any way illegally as stipulated under the NCISA. Under such circumstances, the Court held that it retained a discretion to refuse a prior restraint if it would cause “some inequity and would amount to unconscionable conduct” on the part of the Government. (p. 35)

Therefore the Court could not suppress the impugned information relating to the properties or the Association from publication, even if its release would expose a crime, because to do so would be “unconscionable.” The Supreme Court upheld the findings of the High Court and awarded Haufiku and the Patriot’s costs to be paid by the Government.

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