Content Regulation / Censorship, Defamation / Reputation, National Security, Political Expression, Press Freedom
Le Ministère Public v. Uwimana Nkusi
Closed Expands Expression
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A weekly newspaper, Informanté, published an article alleging that the Mayor of the city of Windhoek (Shikongo) participated in a corrupt land deal that favored private and personal interests. Mayor Shikongo sued the owner, the editor, and the printer of the newspaper for defamation. The Supreme Court added to Namibia’s rule of law the defense of “reasonable publication in the public interest,” but determined that the publication was defamatory and the circumstances regarding the publication did not meet the reasonable and responsible standards of the defense.
Informanté is a weekly newspaper published in Namibia. The editor of Informanté, Max Hamata, published an article alleging a corrupt land deal involving the city of Windhoek and its Mayor Matheus Shikongo. In particular, the story claimed that the city initially sold land below market value to a Broederbond (pro-apartheid) group and that a subsequent deal allowed by Mayor Shikongo deprived the city of Windhoek of millions of dollars. The article also alleged that the Mayor Shikongo’s role in the sale benefited the Bank of Windhoek, for which he served as a board member. Hamata’s article was almost entirely based on an unnamed source. He did not verify the public documents regarding the land deal and did not called the Bank of Windhoek to confirm Mayor Shikongo status as a board member.
Hamata tried to call Mayor Shikongo but did not leave a message at his office requesting a response or comment regarding the story. After Informanté published the story, they issued a correction which stated that Mayor Shikongo was not a board member of the Bank of Windhoek. Mayor Shikongo sued editor Hamata, the owner of Informanté, and the printer (the defendants) alleging that the statements published by the newspaper were wrongful and defamatory. The defendants asserted the defense of truth in the public interest, the defense of fair comment, and the defense of reasonable publication.
The High Court of Namibia determined that Hamata’s article was defamatory of Mayor Shikongo. On appeal to the Supreme Court of Namibia, the defendants argued that the proper form of adjudication in a defamation claim is to impose an onus on the plaintiff to establish that the defamatory statement was false. [para. 35] Mayor Shikongo (the respondent) argued that the Court should adopt the defense of reasonable publication as recognized in several common law jurisdictions.
O’Regan, AJA, delivered the opinion of the Supreme Court of Namibia. The main issue before the Court was how the law of defamation should balance the right to freedom of speech established in article 21(1)(a) of the Constitution and the constitutional precept of human dignity as entrenched in article 8. [para. 1]
First, the Court recognized the importance of freedom of speech and expression in a democratic society. The Court further considered the role of the media in disseminating ideas and information in a democracy. [para. 28] However, the Court also established that the media has to exercise their right with responsibility and integrity. [para. 28]
Second, the Court considered if the common law of defamation required furthered development. The Court determined the defense of reasonable publication would provide more protection to the right to freedom of speech and media without inhibiting the right to human dignity. The Court added that the defense requires “publishers of statements to be able to establish not that a particular fact is true, but that it is important and in the public interest that it be published.” [para. 53] The defense also requires reasonableness and responsibility in the circumstances before the publication. [para. 53] The Court added that the defense promotes responsible journalistic practices to avoid reckless and careless publications. [para. 56] The Court found the newly established defense properly balanced the freedom of speech and the constitutional precept of human dignity. [para. 56]
When examining the case at hand, the Court found the statements made by Hamata to be defamatory, and that Hamata could not prove the facts were true or substantially true. [para. 72] Concerning the defense of reasonable publication, the Court determined that the publication was indeed in the public interest. However, the circumstances under which Hamata published the article did not constitute reasonable and responsible journalism. According to the court, Hamata did not diligently investigate facts provided by an anonymous source, and did not give Mayor Shikongo an opportunity to respond. The Supreme Court confirmed the High Court’s judgment that Hamata’s article was defamatory to Mayor Shikongo, while adding in its judgment the common law defense of “reasonable publication in the public interest.”
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The decision expands expression as it adds to Namibian rule of law the defense of reasonable publication in the public interest. The Supreme Court considered previous decisions of foreign courts such as those in Canada, South Africa, and the United Kingdom concerning the defense of reasonable publication in the public interest. The Court also determined that the defense of reasonable publication balanced the right to freedom of speech and the protection of human dignity. While declining to put the burden on plaintiffs to prove the falsity of defamatory statements, the newly established defense of reasonable publication in the public interest greatly expands freedom of expression in Namibia.
Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.
Case significance refers to how influential the case is and how its significance changes over time.
The Supreme Court is the highest court in Namibia and its decisions are binding.
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