BRIEFING PAPER: ANTI-TERRORISM LEGISLATION IN NAMIBIA

“organising” in connection with the already loose definition of “terrorist activity”
creates opportunities for abuse of the law to target not just the main protagonists in
protests, opposition and criticism but also others who might be seen to be aiding or
encouraging them. The effect of this legal laxity could have far-reaching implications
for the media, civil society and the citizenry in general.
The problem in any law with lax and vague definitions of what constitutes criminality
is that all the other actions and responses outlined in the law could be applied in
a manner that undermines fundamental human rights. For example any person or
organisation linked to “terrorist activity” as defined in the Act could be “proscribed”
or effectively banned.7 Conceivably this could mean a media house, labour union, or
civil society organisation. In addition people or organisations who simply “associate”
with a proscribed person or body could also be proscribed.

‘

Other concerns

Perhaps most
tenuously Section
44 ends by stating
that any person or
organisation “in any
way involved in any
terrorist activity or
proliferation activity”
can be proscribed.
The Minister can also
act on a request from
a foreign state to
proscribe persons or
organisations.

’

Part 4 of the Act dealing with Investigating Powers and Other Anti-terrorism and
Proliferation Measures details a wide range of potentially necessary but also
sometimes problematic interventions by the State. In some cases what might be
considered normal rights and permissions are suspended.
In section 38(1) the police are given the right to enter and search a vehicle or premises
without a warrant if there are reasonable grounds for suspecting terrorist activity.
However, there are also attempts in Part 4 to ensure the constitutional rights of those
affected by the police’s actions are protected. If the right to privacy and/or liberty is
affected through searches and arrests then such interference or deprivation may
only be authorised on the grounds of the prevention of crime and the protection of
the rights of others as contemplated in Article 13(1) of the Namibian Constitution.
Similarly, interception and monitoring of communications can only be authorised
taking cognisance of Article 13(1) which states:
No persons shall be subject to interference with the privacy of their
homes, correspondence or communications save as in accordance with
law and as is necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country, for the
protection of health or morals, for the prevention of disorder or crime
or for the protection of the rights or freedoms of others.
In terms of section 40 of the Act, the Inspector-General of the Police may, for the
purpose of obtaining evidence of an offence, apply to a judge ex parte (without other
affected parties being present) for a warrant for the interception of communications.
The judge can order a communications service provider to intercept and retain a
specified communication or communications of a specified description.
A judge can also authorise a member of the police or the Namibia Central Intelligence
Agency to enter any premises and to install or remove on such premises any device
for the interception and retention of communication if there are reasonable grounds
to suspect terrorist activity. A judge’s authorisation can also cover the interception of
all postal articles to or from any person, body or organisation affected by the warrant.
Information from such interceptions is admissible as evidence. The authorisation for
7

Proscribed means outlawed or forbidden. The Act states in Section 1 that organisations and individuals are
proscribed by the Minister of Safety and Security in collaboration with the Security Commission.

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