• • An exception are the courts, with the 2004 Criminal Procedures Act establishing the principle that all proceedings are open to the public unless on the grounds of national security, public order, the protection of public morals, or to protect certain witnesses. Grounds of national security, public order and the protection of public morals may be open to broad interpretation. The Draft Communications Bill states that meetings of the regulatory authority should be open to the public, but then provides overly broad grounds for the authority to hold meetings behind closed doors. National security (Table 10, Appendix 3) The main principles of the Protocol and Declarations with regard to this theme are as follows: • • In terms of the AC Declaration, free expression should not be restricted on the grounds of pubic order or national security “unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risks of harm and the expression”. The Declaration also requires that secrecy laws be amended to comply with freedom of information principles. The main findings in the analysis are that: • • • Existing laws covered in this study are open to broad interpretation in terms of the grounds they give for restricting free speech and free flow of information on the basis of national security, and are unlikely to comply with the more specific requirements of the AC Declaration. The reform of secrecy laws may first require the putting in place of an access to information policy and access to information legislation. The view of the government towards the issue of national security and free expression appears to be at odds to that of members of civil society. During the law’s passage through Parliament, editors, media freedom advocates and some lawyers deemed sections of the 2002 Defence Act – notably Sections 26, 55 and 63 - to be 5 unconstitutional on the grounds that they overly restricted free expression . However, Defence Minister Erkki Nghimtina said at the time that such an approach was necessary to avoid terrorist attacks similar to those on the United States on September 11, 2001. “There is democracy in our country but we can’t have unguided 6 democracy,” the Minister reportedly said . He later justified the restrictions in terms of 7 Article 21.2 of the Namibian Constitution , that states that all fundamental rights and freedoms guaranteed in Article 21.1 be subject to Namibian law, “in so far as such law imposes reasonable restrictions on the exercise of the rights and freedoms conferred by the said sub-article, which are necessary in a democratic society and are required in the interests of the sovereignty and integrity of Namibia, national security, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence”. The constitutionality of the relevant sections of the 2002 Defence Act, as well as other restrictive security laws, has yet to be challenged. Defamation and privacy (See Case Laws in Appendix 4) The main principles of the Protocol and Declarations with regard to this theme are as follows: 5 p89 of MISA (2002): So This is Democracy – State of the Media in Southern Africa in 2001 (MISA, Windhoek) 6 Ibid. 7 Ibid, p95 Namibia Media Law Audit – report final draft 28