Sector 1: Freedom of expression, including freedom of the media, are effectively protected and promoted. 1.1 Freedom of expression, including freedom of the media, is guaranteed in the constitution and protected by other pieces of legislation. ANALYSIS: It was found that freedom of expression and freedom of the media are guaranteed in the constitution but not sufficiently protected by other pieces of legislation. Article 21 of the Constitution states: “All persons shall have the right to freedom of speech and expression, which shall include freedom of the press and other media”. Article 22 of the Constitution states: “Whenever or wherever in terms of this Constitutions the limitation of any fundamental rights or freedoms contemplated by this Chapter is authorised, any law providing for such limitation shall: (a) be of general application, shall not negate the essential content thereof, and shall not be aimed at a particular individual; (b) specify the ascertainable extent of such limitation and identify the Article or Articles hereof on which authority to enact such limitation is claimed to rest.” Apart from this article and article 144 of the constitution that acknowledges international conventions (such as the Universal Declaration of Human Rights with its article 19 guaranteeing freedom of opinion and expression) there is no other proactive legislation that protects and provides an environment for freedom of expression and freedom of media. The principle that the constitution takes precedence over legislation has been successfully tested in court, for example in the Hustler sex shop case. When the shop was opened in mid 1990’s, and police immediately confiscated all the material and closed the shop down. The owners went to court and the court found that even though there was legislation on the statute book at the time (the immorality act) upon on the police was acting, this was overridden by the constitutionally guaranteed right to freedom of expression. The police had to return the items, the shop had to be allowed to operate - and is still operating today. SCORES: Individual scores: Average score: 1.2 4, 3, 3, 4, 4, 3, 2, 4 3.4 The right to freedom of expression is enforced and citizens, including journalists, are not prejudiced when using this right. ANALYSIS: The general notion was that people are free to express themselves but that citizens do not necessarily know about this right. And – apart from the Hustler case – it has not really been put to the test so far. In Namibia, people are freely expressing themselves. Every now and then there are threatening voices and noises, for example from the former president, but these do not really curtail freedom of expression. Callers to radio chat shows are not scared to voice their opinions, they give their names and speak openly. So This Is Democracy? 2005 -226- Media Institute of Southern Africa