• • • publishing information of public interest, while everyone has the right to access, update and correct their personal information held by public or private bodies. The right to access information is subject only to clearly defined rules established by law, principles for which are contained in Article IV of the AC Declaration. Any refusal to disclose information shall be subject to an appeal to an independent body and/or the courts. Governments are obliged to promote the use of indigenous languages in public affairs, including the courts. The main findings in the analysis are that: • • • • • • • • • • • The right of access to information is probably implied in Article 21.1 of the Namibian Constitution, which guarantees free expression and media freedom, and in Article 18 dealing with the administration of justice. However, there is no explicit provision for the right of access to information in the Constitution, and most legislation covered in this study is either silent or overly restrictive when it comes to access to information matters. The apartheid era Protection of Information Act remains on the statute books, and is the antithesis of access to information provisions made in the SADC Protocol and AC and ICT Declarations. Secrecy and national security laws tend to be broad and probably do not conform to the specific provisions of the AC Declaration. There are few, if any, existing laws that actually proactively promote the public’s right to access information held by government and other public bodies. Namibia lacks enabling access to information legislation. Instead, current legislation – notably the Public Service Act as well as defence and security legislation covered in the study – invests a great deal of discretionary power in individual Government officials (notably Ministers and Permanent Secretaries), who are empowered to act as gatekeepers with regards the release of information to the public. Civil servants are prohibited from disclosing information without the permission of the relevant Permanent Secretary. Electoral, labour and security legislation provide no protection to people disclosing unauthorised information relating to broadly defined matters of secrecy and national security, no matter how legitimate the person’s motives for disclosing the information are. Laws contain sweeping provisions for non-disclosure of “sensitive” and “secret” information, and non-disclosure on the grounds of “national security” and the “public interest”. These provisions for non-disclosure are open to broad interpretation. Besides information relating to national security, existing and prospective legislation governing the regulation of media and communications provides for the restriction of commercially sensitive information, without defining what is “commercially sensitive”. The Protocol and Declarations make no reference to “commercially sensitive” information, although generally it is accepted that some commercially sensitive information should not be subject to disclosure. There are few legislative or regulatory mechanisms for holding public bodies accountable for decisions they take. This includes public bodies supposedly responsible for promoting free expression, such as the NBC and the Namibian Communications Commission. However, case law (Government of the Republic of Namibia v Sikunda 203 NR 2002, SC – see Appendix 4) has upheld the principle, contained in Article 18 of the Constitution, that members of the public have the right to appeal against decisions taken by such bodies, and in so doing, these bodies should give valid reasons for their decisions. The principle that all information is accessible to the public, except in clearly specified circumstances, which is explicit in Articles III and IV of the AC Declaration, is not reflected in any of the legislation covered by the study. Even when proactive disclosure of information is provided for, as in the Draft Communications Bill, the legislation proscribes what information can be disclosed, thereby working from the premise that all information is not to be disclosed unless Namibia Media Law Audit – report final draft 22