• • • • that are independent of economic and political control and interference, particularly with regards editorial content (articles, programmes, news and current affairs). States need to be proactive to ensure the promotion and growth of free expression, and should not rest with the legislative status quo. Review and reform, therefore, seem to be envisaged as an on-going process. States also need to be proactive in creating an environment that allows free expression in general, and independent media in particular to flourish. Equity is a corner stone of free expression, and States should take steps to ensure the less powerful in society also exercise their right to free expression to the full. There should be no undue restrictions on and interference with free expression, and any restrictions should be contained in law and determined by what is considered necessary in a democratic society. The main findings in the analysis are that: • • • • Free expression and media freedom are protected in terms of the Namibian Constitution, and this protection has been enhanced through case law, most of which has upheld the kind of general provisions for free expression made in the Protocol and Declarations. Consequently, most laws conform to these general provisions in so far as they do not unduly restrict free expression. The 1991 Racial Discrimination Act was amended to conform to free expression principles, while apartheid era laws governing pornography have been rendered inoperative by legal challenges. However, restrictions on free expression on the grounds of national security and public order remain broad, and appear not to conform to the specific requirements of the AC Declaration. Furthermore, there is little on the statute books to ensure that the State proactively promotes and “grows” free expression. Legislative and regulatory mechanisms are currently lacking for ensuring that less powerful groups such as women, children, disabled people and those living in rural areas also enjoy their right to free expression to the full. This lack of proactive legal provision results in free expression being a relatively oneway process, with information flowing from a powerful, urban elite to less powerful, largely rural majorities. Legislative and regulatory mechanisms are required to enable the less powerful in society to both seek and impart information and ideas, and not just receive it, as tends to be the case at present. Access to information (general) (see Table 2, Appendix 3, and Case Laws, Appendix 4) The main principles of the Protocol and Declarations with regard to this theme are as follows: • • • • • The free flow of information inherent in the right to free expression is dependent upon people being able to access information, with access to information itself being a fundamental right that SADC member States have committed themselves to promoting and upholding. Disclosure of information by bodies holding information is a cornerstone of the right to access information, and essential for the free flow of information, which SADC member States have committed themselves to promoting and upholding. More specific guidelines on how to go about this are contained in the AC Declaration, which states that it is up to public bodies to be proactive in making information available to the public – governments and public bodies do not own the information in their possession, but rather they are custodians of this information on behalf of the public they serve. No one should be punished for releasing in good faith information about some wrongdoing, or a threat to public health, safety and the environment. Therefore, all members of the public should have the right to access information held by government and other public bodies in terms of clearly defined legislation. Furthermore, in terms of the AC Declaration, public bodies have to be proactive in Namibia Media Law Audit – report final draft 21