Criminal defamation consists in the unlawful and intentional publication of matter 13 concerning another that tends seriously to injure his reputation . This crime is known as “criminal defamation” in order to distinguish it from civil defamation. The elements of the crime are the following: (a) the publication (b) of a defamatory allegation concerning another which is (c) serious and which is made (d) unlawfully and (e) intentionally. A person’s good name or reputation can be harmed only if the conduct or words complained of come to the notice of someone else - in other words, if publication takes place. Words are defamatory if they tend to expose a person to hatred, contempt or ridicule, or if they tend to diminish the esteem in which the person to whom they refer is held by others. Certain authorities and courts have maintained that the violation must be serious, whereas others maintain that even slight violations should also be punishable. The test used to determine which cases are serious is, in principle, similar to the test employed in cases of civil defamation as discussed in Appendix 4. No cases of crimin iniuria or criminal defamation have come before the Namibian courts since independence in 1990. Most of the reported defamation cases relate to civil defamation in which plaintiffs institute monetary claims for damages. The threat however remains that journalist could be prosecuted for both these offences. Criminal procedures (Case Laws in Appendix 4) The main principles of the Protocol and Declarations with regard to this theme are as follows: • • The AC Declaration also calls for a review of criminal restrictions on communication content It also states that freedom of expression should not be restricted on the grounds of public order and national security “unless there is a real risk of harm to a legitimate interest and there is a close causal link between the risk of ham and the expression”. The main findings in the analysis are that: • • • • • The 1991 Racial Discrimination Act, as amended, prohibits expression that may incite racial hatred. But the law contains a public interest defence that should conform to the provisions of the AC Declaration. Such a public interest defence is rare in the legislation reviewed for this study, and came about because the original Act was found to be unconstitutional. Provisions of security legislation outlined in ‘National Security’ above are generally broad, and are unlikely to conform to the strict grounds for restriction provided in the AC Declaration. Apartheid-era pornography legislation has effectively been deemed unconstitutional as a result of the 1998 Hustler case. Otherwise, there have been few test cases challenging criminal restrictions on expression and media content. The current Caprivi High Treason trial, that followed an uprising by those wanting the Caprivi region to secede from Namibia, has focussed on the act of armed insurrection, and – as far as could be established - the issue of expression of secessionist beliefs has not yet been contested. Therefore criminal restrictions on expression and media content not covered by this study could remain on the statute books, and a more comprehensive review of such legislation, as envisaged in the AC Declaration, would be in order. Attacks on journalists (see Table 12, Appendix 3) The main principles of the Protocol and Declarations with regard to this theme are as follows: 13 Ibid. Namibia Media Law Audit – report final draft 30